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HomeMy WebLinkAbout10-1041AP 7,17 P Robert J. Tribeck, Esquire Attorney I.D. No. 74486 Kevin M. Gold, Esquire Attorney I.D. No. 70265 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Express Dynamics, LLC d/b/a WorkXpress EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff V. RAYMOND SPELLMAN Defendant. 2010 FEB -9 PM 3' 40 1-1;UN 1 GV dr NA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 16-1,11411 NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the forgoing pages, you must take action within twenty (20) days after this Complaint and notice are served by entering a written appearance personally or by attorney, and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE OR KNOW A LAWYER, THEN YOU SHOULD GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 pj# d37 llfl? 770410.1 Robert J. Tribeck, Esquire Attorney I.D. No. 74486 Kevin M. Gold, Esquire Attorney I.D. No. 70265 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 ,Attorneys for Express Dynamics, LLC d/b/a WorkXpress EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff V. RAYMOND SPELLMAN Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ?0- AVISO USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea defenderse de las quejas expuestas en las paginas siguientes, debe tomar acc16n dentro de veinte (20) dias a partir de la fecha en que recibi6 la demanda y el aviso. Usted debe presentar comparecencia esrita en persona o por abogado y presentar en la Corte por escrito sus defenses o sus objeciones a las demandas en su contra. Se le avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede decidir en su contra sin mas aviso o notificaci6n por cualquier dinero reclamado en la demanda o por cualquier otra queja o compensaci6n reclamados por el Demandante. USTED PUEDE PERDER DINERO, O PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO TIENE O NO CONOCE UN ABODAGO. VAYA O LLAME A LA OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE PUEDE OBTENER ASISTENCIA LEGAL. LAWYER REFERRAL SERVICE Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 -2- Robert J. Tribeck, Esquire Attorney I.D. No. 74486 Kevin M. Gold, Esquire Attorney I.D. No. 70265 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 ,4ttorneys for Express Dynamics, LLC d/b/a WorkXpress EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. RAYMOND SPELLMAN Defendant. CIVIL ACTION - LAW NO. /6- 10 yl cU `/ fo',^- JURY TRIAL DEMANDED COMPLAINT FOR DECLARATORY JUDGMENT Plaintiff Express Dynamics, LLC d/b/a WorkXpress ("WorkXpress"), by its attorneys, Rhoads & Sinon LLP, files this Complaint for Declaratory Judgment against Defendant Raymond Spellman ("Spellman"), and in support thereof avers as follows: INTRODUCTION 1. WorkXpress is a Pennsylvania limited liability company with a business address of 453 Lincoln Street, Suite 114, Carlisle, Pennsylvania 17013. 2. Spellman is an adult individual with an address of 327 Morris Avenue, Boonton, New Jersey 07005. 3. This action arises under the laws of the Commonwealth of Pennsylvania and is within the subject matter jurisdiction of this Court. 4. Venue is proper pursuant to Pennsylvania Rule of Civil Procedure 2179. -1- FACTUAL BACKGROUND 5. WorkXpress incorporates the Paragraphs set forth above as if fully set forth herein. 6. WorkXpress is a software company that assists customers in creating customized software solutions. 7. In conjunction with its business, WorkXpress has utilized the services of value added resellers ("VARs"), including Defendant. 8. The VARs made introductions to prospective customers in order for WorkXpress to perform services for such customers, and were to perform additional services on behalf of WorkXpress for such customers, including providing customer support and additional sales and marketing of the services of WorkXpress. 9. WorkXpress would perform its services, invoice the customers, and be paid directly by the customers. 10. After being paid for its services by the customers, WorkXpress made agreed upon payments to the VARs. 11. The agreements between WorkXpress and its VARs have, in some cases, been oral. 12. The oral agreements between WorkXpress and its VARs have, at all relevant times, been terminable at the will of either party. 13. The oral agreements between WorkXpress and its VARs were made and formed in Pennsylvania. -2- 14. In or around 2006, WorkXpress and Defendant entered into an oral agreement whereby Defendant would provide services as a VAR and, while performing such services, would receive certain payments associated therewith. 15. From 2006 through 2009, Defendant was paid in accordance with the parties' oral agreement for one customer (the "Customer") of WorkXpress. 16. In early 2009, WorkXpress decided to alter the relationship with its VARs and other agents, including Defendant. 17. Initially, WorkXpress offered Defendant the opportunity to be classified as an "agent" and continue to receive certain payments in exchange for certain services to be provided, as opposed to serving as a VAR. 18. Defendant rejected this proposal and, thereafter, WorkXpress elected to terminate the parties' oral agreement. 19. Defendant has opposed termination of the oral agreement and taken the position that he is entitled to receive payments for any future services performed by WorkXpress on behalf of the Customer in the same manner and at the same rate as he received while he was a VAR for WorkXpress. 20. WorkXpress denies that Defendant is entitled to any additional payments and that it had the unfettered discretion to terminate the oral agreement with Defendant at will. 21. The instant action is necessary to address the specific issue as to the permissibility of termination of the oral agreement with Defendant by WorkXpress. - 3 - COUNT I: PENNSYLVANIA DECLARATORY JUDGMENT ACT 22. WorkXpress incorporates the Paragraphs set forth above as if fully set forth herein. 23. Pursuant to the Pennsylvania Declaratory Judgment Act, 42 Pa. C.S.A. § 7533, this Court may declare the rights and other legal relations of any interested party. 24. As set forth above, Defendant has asserted that WorkXpress cannot terminate the oral agreement and is obligated to continue to compensate Defendant under such agreement. 25. There exists a real and actual controversy between WorkXpress and the Defendant. 26. There exist antagonistic claims indicating imminent and inevitable litigation. 27. Specifically, there exists a dispute over whether WorkXpress could terminate the oral agreement with Defendant at will. 28. The interests of the parties will be best served if this Court will enter a declaratory judgment setting forth the rights of the parties with respect to this dispute. 29. The relief sought by Plaintiff will resolve the controversy relative to the respective interests of WorkXpress and Defendant. 30. A declaratory judgment is particularly appropriate for issues of contractual interpretation. 31. The law is clear that, if a contract does not specify a definite time or prescribe conditions that determine the duration of the relationship, the contract may be terminated by either party at will. -4- 32. Here, the oral agreement between WorkXpress and Defendant does not specify, and has never specified, that the agreement is for a definite time, nor does the agreement prescribe conditions that determine the duration of the relationship. 33. Accordingly, WorkXpress may terminate its relationships with Defendant at will. WHEREFORE, Plaintiff, Express Dynamics, LLC, hereby requests that this Honorable Court issue an Order declaring the parties' rights and obligations under the terms of the oral agreements. Respectfully submitted, RHOADS & S1NON LLP B y: 0whkX-- Robert J. Tribeck Kevin M. Gold One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff - 5 - VERIFICATION Treff LaPlante, deposes and says, subject to the penalties of 18 Pa. C.S. §4904 relating to unworn falsification to authorities, that he is the President-of Express Dynamics, LLC, and that he makes this verification through his authority and that the facts set forth in the foregoing document are true and correct to the best of his knowledge, information and belief. Date Treff LaPlante, President Robert J. Tribeck, Esquire Attorney I.D. No. 74486 Kevin M. Gold, Esquire Attorney I.D. No. 70265 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Express Dynamics, LLC d/b/a WorkXpress i1LE[;? _ y 2010 FEB 18 Fj- 1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff CIVIL ACTION - LAW NO. 10- 1041 v. RAYMOND SPELLMAN Defendant. AFFIDAVIT OF SERVICE BY MAIL On February 11, 2010, I mailed a true copy of the Complaint by United States Postal Service Express Mail, proof of service requested, to Defendant, Raymond Spellman ("Defendant"). On February 16, 2010, Defendant, upon delivery and receipt of the Complaint, signed the proof of service provided by the U.S. Postal Service for original process of the Complaint in accordance with Pa. R.C.P. 405. (A copy of the Proof of Service for Defendant is attached hereto as Exhibit "A.") I make these statements pursuant to 18 Pa. Cons. Stat. §4904 relating to unsworn falsification to authorities and understand that false statements may subject me to criminal penalties under that statute. RHOADS & By: Robert. ribeck, Esquire Ke Gold, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Dated: February 17, 2010 474283.1 CERTIFICATE OF SERVICE I hereby certify that on February 17, 2010, a true and correct copy of the foregoing document was served by means of regular United States mail, first class, postage prepaid, upon the following: Raymond Spellman 327 Morris Avenue Boonton, NJ 07005 474283.1 STATES POSTAL SERVICE. Date: 02/16/2010 Robert Tribeck: The following is in response to your 02/12/2010 request for delivery information on your Express Mail(R) item number EU33 5174 708U S. The delivery record shows that this item was delivered on 02/16/2010 at 04:22 PM in BOONTON, NJ 07005 to R SPELLMAN. The scanned image of the recipient information is provided below. Signature of Recipient: Address of Recipient: sP?" 3a -1 Mir'- Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service A x ?Fy t T ! ? o m? 3; m 'ov • s;z', f v m a o o N m p r 7 3 O n S 9 m Z; ? i ? c. V (D a 1°?s H t m C (? 9 3(fl o ??.T ;. 4 . m h "m "n to M t o Wm m x. p IF. W FeO m ti. A c? "f y m m ? z :t C s Z m c t;, ? ,'Cl? n ? m c g M Y`, ?; m c N w ?+ n a m w Z u _ v % f C 1 _ i O P,q 02 i fEB 1`1 201 v, J '! L . rJ. .aC' 3- IS Y Labelll-B May.2001 m. 5 !f - !~ v Raymond J Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 Defendant ~(~I~~I~"d~y.r.iv~t~ At~V ~~~ T' 1~ i'i'i l f~i~i+~:~.l~i~y^t l 2Q~~"~i~ -~ Ps1 ~~ 5Q ,, fP ,, EXPRESS DYNAMICS, LLC d/b/a IN THE COURT OF COMMON PLEASE WORKXPRESS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. CIVIL ACTION -LAW No. ~9-940 Civil lo•iayf RAYMOND SPELLMAN, Defendant. To: Robert J. Tribeck Rhoads & Sinon LLP Twelfth Floor One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 DEFENDANT'S FIRST SET OF INTERROGATORIES Defendant hereby makes demand that the Plaintiffs answer the following Interrogatories pursuant to the Pennsylvania Rules of Civil Procedure 4001 et seq. These Interrogatories must be answered as provided in Pa. R.C.P. 4006 and the Answers must be served on all other parties within thirty (30) days after the Interrogatories are deemed served. 1 ~ ~~ DEMAND is hereby made by Defendant RAYMOND J SPELLMAN, for answers, under oath or certification, to the following Interrogatories within the time and in the manner prescribed by the rules of this Court. Pro Se Defendant RAYM ND SPELLMAN Dated: March O5, 2010 These Interrogatories are deemed to be continuing as to require the filing of Supplemental Answers promptly in the event Plaintiff learns additional facts not set forth in its original Answers or discover that information provided in the Answers is erroneous. Such Supplemental Answers may be filed from time to time, but not later than 30 days after such further information is received, pursuant to Pa. R.C.P. 4007.4. These Interrogatories are addressed to you as a party to this action; your answers shall be based upon information known to you or in the possession, custody or control of you, your attorney or other representative acting on your behalf whether in preparation for litigation or otherwise. These Interrogatories must be answered completely and specifically by you in writing and must be verified. The fact that investigation is continuing or that discovery is not complete shall not be used as an excuse for failure to answer each interrogatory as completely as possible. The omission of any name, fact, or other item of information fram the Answers shall be deemed a representation that such name, fact, or other item was not known. to Plaintiffs, their counsel, or other representatives at the time of service of the answers. 2 Y ~ /" DEFINITIONS As used herein the following terms shall have the meanings indicated: "DEFENDANT" means RAYMOND SPELLMAN "PLAINTIFF," "you" or "your", unless otherwise stated, means EXPRESS DYNAMICS, LLC d/bla WORKXPRESS, its agents, representatives, attorneys, etc. "DOCUMENT": shall mean the original and any copy, regardless of origin or location, of any book, pamphlet, periodical, letter, memorandum, telegram, report, record, study, handwritten note, working paper, chart, photograph, index, tape, data sheet or data processing card or any other written, recorded, transcribed, punched, taped, filmed or graphic matter, however produced or reproduced, to which you have or had access. "PERSON": shall include natural persons, proprietorships, corporations, partnerships, groups, associations, and organizations. "INCLUDING" means including but not limited to. "ORAL COMMUNICATION": shall mean any utterance heard by another person, whether in person, by telephone or otherwise. "IDENTIFY": when used in reference to an individual person shall mean state his full name, residence address, present or last known position and business affiliation and his position and business affiliation at the time in question. "IDENTIFY": when used in reference to a corporation shall mean state its full name and the address of its principal office. 3 Y• f' "IDENTIFY": when used in reference to a document shall mean state the date, author or originator, subject matter, addressee(s), type of document, (e.g., letter, memorandum, telegram, chart, etc.) or some other means of identifying it, and its present location and custodian. If any document was but is no longer in your possession or subject to your control, state what disposition was made of it. 4 Y' ~~ INSTRUCTIONS A. When answering the following Interrogatories, provide any and all information either in your possession, under your control, within your dominion or available to you, regardless of whether this information is in your personal possession or possessed by our agents, servants, employees, representatives or others with whom you have a relationship and are capable of deriving information, documents or material. B. If you cannot answer any of the following interrogatories in full, after exercising due diligence to secure the information to do so, answer to the extent possible and specify the reason far your inability to furnish a complete answer. If only a portion of an Interrogatory cannot or will not be answered provide the fullest answer to the Interrogatory and thereafter specifically set forth (a) the fact that the answer is incomplete; and (b) the reason or grounds for any omission and/or refusals to complete. If any document was but is no longer in your possession or subject to your control, state what disposition was made of it. C. Each interrogatory calls not only for your knowledge, but also for all knowledge that is available to you through reasonable inquiry, including inquiry of your representative(s) or agent(s). D. If you withhold information, based on a claim that such information is privileged, you must (1) state the exact nature of the privilege you are claiming, and (2) support your claim by describing the nature of the information you are withholding. 5 ~. INTERROGATORY 1. Identify your full name (Maiden Name if applicable) alias(es), address (and all addresses for the last five (5) years), age, Social Security Number, your employer's name and address and title or position of the person answering these Interrogatories on behalf of Plaintiff's and state the authority vested in said individual to answer same. In the event that different persons are answering specific questions contained in these sets of interrogatories, please set forth the information requested in this question under that answer provided for each question below. 2. Identify all persons, including full name and address, who have knowledge of any relevant facts relating to this case. For each such individual, also set forth the name and address of his or her employer and the individual's position and/or job title at the time he or she obtained knowledge of such relevant facts. 6 r~ 3. Please state whether within the last ten years any PERSON has claimed that YOU breached any contract. 4. If your answer to interrogatory number 3 was yes, please IDENTIFY the PERSON who advanced such claim. 5. If your answer to interrogatory number 3 was yes, please describe the means by which such claim was advanced. 7 r' ~' 6. Please state whether within the last ten years any PERSON commenced a legal proceeding claiming that YOU breached any contract. 7. Identify all persons (except your attorney herein) with whom the person(s) executing the answers to these Interrogatories consulted in the preparation of such answers, and specify with respect to each such person consulted the numbers} of the Interrogatories about which he or she was consulted. 8. (a) Identify each person whom Plaintiff intends to rely upon at trial as an expert witness. (b) Set forth the substance of the facts and opinion to which each expert is expected to testify and a summary of the grounds for each opinion. 8 r ~ (c) Set forth in detail, the educational background, work history, professional experience, professional association, or other material upon which the Plaintiff will rely to establish that each of the foregoing named individuals is an expert, and the field or area each such person is an expert. (d) Attach to Plaintiff s answers to these Interrogatories complete and true copies of all written reports rendered by each expert listed in the answers to these Interrogatories. If any of said reports were oral, set forth, in detail, the substance of each such report. If any written or oral expert reports are submitted subsequent to the date of the answer to these Interrogatories, complete and true copies of such reports or complete summaries of any such oral reports shall be served promptly upon Plaintiff. 9 y 9. List and attach to the answers to these Interrogatories true copies of all documents of any description whatsoever upon which Plaintiff may rely at the time of trial to establish or prove any part of Plaintiff s case or which Plaintiff may introduce into evidence for any purpose whatsoever at trial. 10. List and attach to the answers to these Interrogatories true copies of federal, state and local tax returns tax returns from 2002 to 2010 for Treff LaPlante, Express Dynamics and WorkXpress. 1 1. List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, employee, company or entity that was utilized in the development of Plaintiff's software from 2002 to 2010 and state: a) the dates, times and location of where each person or company worked; 10 b) the type of work the person or company performed; c) how the person or company was compensated; d) the amount paid or bartered as compensation; e) the form of payment or barter; f) when payment was made; g) complete educational and technical background. 11 h) whether the person, employee, company or entity is stilled employed or provides service and if not why they no longer are employed or provide services. 12. List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, employee, company or entity that was utilized in the sales and/or marketing of Plaintiffs software from 2002 to 2010 and state: a) the dates, times and location of where each person or company worked; b) the type of work the person or company performed; c) how the person or company was compensated; d) the amount paid or bartered as compensation; 12 e) the form of payment or barter; f) when payment was made; g) complete educational and technical background. 13. List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, company or entity that is or was classified as a VAR, Agent or Partner of Plaintiff s software from 2002 to 2010 and state: a) the dates, times and location of where each person or company worked; b) the type of work the person or company performed; 13 c) how the person or company was compensated; d) the amount paid or bartered as compensation; e) the form of payment or barter; f) when payment was made; 14. State whether any agreement or agreements, written or oral, were made between the Plaintiff and Defendant. Provide an exact description of such agreements which includes: a) What parties, entities, persons or companies where involved in the agreements 14 b) the time date and place the agreements took place and who was present c) every term and condition of the agreements d) the responsibilities of all parties, entities, persons or companies involved in the agreements e) How revenues were to be shared amongst the parties, entities, persons or companies involved in the agreements f) attach any copies of such agreements. 15 15. State why some of the agreements with VAR's or Agents are verbal and others are in writing. 16. State the exact dates that all verbal and written VAR or Agent agreements ratified by Treff LaPlante, Express Dynamics and/or WorkXpress were ratified. 17. Identify in detail each and every item of tangible property which Plaintiff may use at the time of trial to establish or prove any part of Plaintiff s case or which Plaintiff may introduce into evidence for any purpose whatsoever at the time of trial. With respect to each such item of tangible property, identify any person who has custody of such item and the present location where such item may be inspected. 16 .' 18. With respect to any writing or any type of tangible property which Plaintiff does not intend to produce at the time of trial, but where Plaintiff may produce testimony or other evidence representing the nature, contents, or characteristics or such writing or item of tangible property, set forth: a) a detailed description of each such writing or item of tangible property; b) the present location of each such item; c) the name and address of the person who has custody of each such item; and d) with respect to each such writing or item which has been destroyed or is no longer in existence, a detailed description of the reason why each such item is no longer in existence and the identities of all persons who may be relied upon by Plaintiff at the time of trial to establish the existence, nature, contents or characteristics of such writing or item. 17 .. Y 19. Does Plaintiff claim that any admissions were made in connection with the subject matter of this action. 20. If the answer to the preceding interrogatory is in the affirmative, set forth as to each such admission: a) the identity of the person who made the admission; b) the date, time and place when the admission was made; c) the identity of the person to whom the admission was made; d) the identity of each person present at the time the admission was made; 18 ~ ! + e) the identity of each person, other than persons named previously in answers to this Interrogatory, having personal knowledge of the admission; f) the complete substance and content of the admission; and g) if the admission is contained in a document, or if any document refers or relates to the admission, identify the document and attach hereto a true copy thereof. 21. Does Plaintiff claim that any declarations against interest were made in connection with the subject matter of this case? 22. If the answer to the preceding interrogatory is in the affirmative, set forth as to each such declaration against interest: 19 ~~ a) the identity of the person who made the declaration against interest; b) the date, time and place when the declaration against interest was made; c) the identity of the person to whom the declaration against interest was made; d) the identity of each person present at the time the declaration against was made; e) the identity of each person, other than persons named previously in answers to this Interrogatory, having personal knowledge of the declaration against interest; f) the complete substance and content of the declaration against interest; and 20 ~~~ .' g) if the declaration against interest is contained in a document, or if any document and attach hereto a true copy thereof. 23. If not already attached in response to previous question, attach copies of the following documents to the answer to these Interrogatories: a) all correspondence between Plaintiff and any party herein that discusses or in any other way relates to the issues raised in this litigation regardless of whether such correspondence was initiated by Plaintiff or by such other party or parties; b) all correspondences between Plaintiff and any third and any other person that discusses or in any other way relates to the issues raised in this litigation regardless or whether such correspondence was initiated by Plaintiff or by such other person; and c) all documents generated by Plaintiff that discuss or in any other way relate to the issues raised in this litigation. 21 .~ , 24. Describe in detail Treff LaPlante's work history from September 1997 to present and include: a) date of employment, partnership, ownership or agent relationship; b) addresses of employer, partner, owner or agent; c) person or persons to who Plaintiff report to; d) job title and responsibilities of Plaintiff; e) compensation amounts including salary, commissions and or bonuses; 22 ` .~, ~ ,. . f) percentage of any ownership interest in any company or entity; g} reason for ending the relationship; 25. Describe in detail Plaintiffs relationship with Servolift, LLC located at 105 West Dewey Ave, Building B, Wharton, Morris County, New Jersey 07855 prior to 2005. a) date of employment, partnership, ownership or agent relationship with Servolift; b} address of employer, partner, owner or agent of Servolift; c) person or persons to who Plaintiff had knowledge at Servolift; These Interrogatories are continuing in nature and it is specifically demanded that all information coming to your attention subsequent to the completion of your answers to these Interrogatories be promptly made available to Defendant. You should take notice that Defendant will object at trial to the introduction of evidence regarding any matters inquired of on these Interrogatories are not revealed n a timely manner. 23 -. J ~J~ ~ CERTIFICATION I hereby certify that the copies of the reports annexed hereto rendered by proposed expert witnesses are exact copies of the entire report or reports rendered by them; that the existence of other reports of said experts, either written or oral, are unknown to me, and if such become later known or available, I shall service them promptly on the propounding party. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. BY: TREFF LAPLANTE Dated: 24 Fi~E~~~r~^~ OF ~F PPCT ~!~ ~~>>~~'A~?Y Raymond J Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 Defendant EXPRESS DYNAMICS, WORKXPRESS, Plaintiff, v. RAYMOND J SPELLMAN, Defendant. LLC d/bia 2~I0 ~:,R -5 ~'~~~ l ~ ~0 ~~ IN THE COURT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. 10-1041 Civil ANSWER Defendant, Raymond J Spellman, located at 327 Morris Avenue, Boonton New Jersey, 07005, for his answer and affirmative defenses, to the Complaint hereby admits, denies, and alleges as follows: INTRODUCTION 1. The Defendant admits that the Plaintiff is a limited liability company with a business address of 453 Lincoln Street, Suite Carlisle, Pennsylvania 17013. 2. The Defendant admits that he is an adult and currently resides at the address stipulated in Paragraph 2 of the Complaint. 3. Defendant denies the allegations set forth in Paragraph 3 of the Complaint. 4. Defendant denies the allegations set forth in Paragraph 4 of the Complaint. 1 FACTUAL BACKGROUND 5. Paragraph 5 of the Complaint contains assertions or conclusion to which no responsive pleading is required. 6. Paragraph 6 of the Complaint contains assertions or conclusion to which no responsive pleading is required. 7. The Defendant has insufficient knowledge regarding the truth of the allegations of Paragraph 7 of the Complaint and leaves Plaintiff to its proofs thereon. 8. The Defendant has insufficient knowledge regarding the truth of the allegations of Paragraph 8 of the Complaint and leaves Plaintiff to its proofs thereon. 9. The Defendant has insufficient knowledge regarding the truth of the allegations of Paragraph 9 of the Complaint and leaves Plaintiff to its proofs thereon. 10. The Defendant has insufficient knowledge regarding the truth of the allegations of Paragraph 10 of the Complaint and leaves Plaintiff to its proofs thereon. 2 11. The Defendant has insufficient knowledge regarding the truth of the allegations of Paragraph 11 of the Complaint and leaves Plaintiff to its proofs thereon. 12. The Defendant has insufficient knowledge regarding the truth of the allegations of Paragraph 12 of the Complaint and leaves Plaintiff to its proofs thereon. 13. The Defendant has insufficient knowledge regarding the truth of the allegations of Paragraph 12 of the Complaint and leaves Plaintiff to its proofs thereon. Concerning the oral agreement between Treff LaPlante, Express Dynamics and WorkXpress, this oral agreement was made in the Defendant's office at New Jersey. Upon completion of the initial sales presentation Laplante, Express Dynamics, WorkXpress and Defendant met at the Defendant's office in New jersey to discuss the opportunity and to finalize the agreement with Defendant's client Servolift. 14. Defendant admits that he entered into an oral agreement with the Plaintiff but except as expressly admitted herein, the Defendant expressly denies the rest and remainder of Paragraph 14. Defendant entered into an agreement with Mr. LaPlante that defined the sharing of revenues for Defendants customer Servolift, LLC ("Servolift") located at 105 West Dewey Ave, Building B, Wharton, Morris County, New Jersey 07855. Defendant denies that he was a 3 VAR for Treff LaPlant, Express Dynamics andJor WorkXpress. As to the remainder of the allegations stated in Paragraph 14 they are vague and ambiguous and, on that basis, Defendants deny generally and specifically said allegations. 15. Defendant admits that he was paid in 2006 and expressly denies the rest and remainder of Paragraph 15. The Defendant denies the allegation that he was paid as agreed for the calendar year 2009 or 2010. As it concerns Servolift, Defendant contends that he "Owns the Customer Relationship." Treff LaPlante, Express Dynamics, and/or WorkXpress are simply technology service providers to Defendants' customer Servolift. 16. The Defendant has insufficient knowledge regarding the truth of the allegations of Paragraph 16 of the Complaint and leaves Plaintiff to its proofs thereon. 17. Defendant denies the allegations contained in Paragraph 17 and expressly denies the rest and remainder of Paragraph 17. Defendant is neither a VAR nor agent of Treff LaPlante, Express Dynamics and/or WorkXpress. Defendant admits that Treff LaPlante did contact Defendant on or about March 12, 2009 attempting to classify the agreement between Plaintiff and Defendant as a VAR or agency agreement and Defendant immediately responded that Plaintiff`s "VAR or Agency Agreements are irrelevant as it concerns Servolift." 4 18. Defendant denies the allegation contained in Paragraph 18. Defendant claims that he was never approached by the Plaintiffs with a proposal and that the Defendant has never considered such a proposal. Thereafter in a communication with Mr. LaPlante on or about March 12, 2009, Defendant stated that the agreement concerning Servolift was understood by both parties and required no further clarification or changes of any kind and Defendant had no interest in or obligation to further clarify or change the agreement and Plaintiff had no right to demand such changes. Concerning WorkXpress election to terminate the parties' oral agreement, this Complaint is the first time that Defendant has heard the word "termination" and further, neither Treff LaPlante, Express Dynamics nor WorkXpress has any right, power or authority to "terminate' or unilaterally change any terms of the parties' agreement. As to the remainder of the allegations stated in Paragraph 18, they are vague and ambiguous and, on that basis, Defendants deny generally and specifically said allegations. 19. Defendant denies the allegation contained in Paragraph 19. Defendant claims that he learned of the alleged and unlawful termination only when he was served with this complaint. Further, neither Treff LaPlante, Express Dynamics nor WorkXpress has any right, power, or authority to "terminate" or unilaterally change any terms of the parties' agreement and Defendant never 5 gave Plaintiff any authority or right to do so. The facts are clear that Servolift is the Defendant's customer. Defendant had a long time professional and business relationship with Thomas Lertola, an employee of Servolift and a key decision maker in the software selection process for Servolift. Express Dynamics, a Pennsylvania Limited Liability Company, was unaware of the New Jersey based Servolift or Lertola and had no prior knowledge of their existence and no prior relationship with Servolift or their employees or their agents. Defendant alleges that he is neither a VAR nor agent of Treff LaPlante, Express Dynamics, or WorkXpress. Defendant never gave Plaintiff any right to terminate the agreement and Defendant is lawfully entitled to all funds rightfully earned and due from Servolift. As to the remainder of the allegations stated in Paragraph 19 they are vague and ambiguous and, on that basis, Defendants deny generally and specifically said allegations. 20. Defendant denies the allegations set forth in Paragraph 20 of the Complaint. 21. Defendant denies the allegations set forth in Paragraph 21 of the Complaint. Defendant claims that in Paragraph 21 of the Complaint, instant action is not necessary to address the specific issue as to the permissibility of termination of the oral agreement. Defendant alleges that Plaintiff, with complete malice and in bad faith, filed the Complaint far Declaratory Judgment when Plaintiff learned that a legal action against Plaintiff by Defendant was imminent. 6 Defendant alleges that Plaintiff filed the action in Pennsylvania for jurisdictional reasons as Plaintiff knows full well that the agreement between the parties was ratified in New jersey making New Jersey the proper jurisdiction for this oral agreement. COUNT I: PENNSYLVANIA DECLARATORY TUDGMENT ACT 22. Allegation stated in Paragraph 22 contains legal assertions or conclusions to which no responsive pleading is required. 23. Defendant denies the allegations set forth in Paragraph 23 of the Complaint. 24. The allegations stated in Paragraph 24 are vague and ambiguous and, on that basis, Defendants deny generally and specifically said allegations. 25. Defendant denies the allegation contained in Paragraph 25. Further the Defendant denies that a "real and actual controversy' exists between Plaintiff and Defendant. This meritless and frivolous action, perpetrated on this Defendant and this Court by Plaintiff, is in bad faith and was conceived by Plaintiff as a way to deny Defendant money legally and rightfully earned, owed and due from Servolift unjustly enriching Plaintiff. As to the remainder of the allegations stated in Paragraph 25 they are vague and ambiguous and, on that basis, Defendants deny generally and specifically said allegations. 7 26. The allegations stated in Paragraph 2b are vague and ambiguous and, on that basis, Defendants deny generally and specifically said allegations. 27. Defendant denies the allegations set forth in Paragraph 27 of the Complaint. 28. Defendant denies the allegations set forth in Paragraph 28 of the Complaint. 29. Defendant denies the allegations set forth in Paragraph 29 of the Complaint. 30. The allegations stated in Paragraph 30 are vague and ambiguous and, on that basis, Defendants deny generally and specifically said allegations. 31. The allegations stated in Paragraph 31 are vague and ambiguous and, on that basis, Defendants deny generally and specifically said allegations. 32. Answering Paragraph 32 of the Complaint, Defendant asserts that the agreement prescribes conditions that determine the duration of the relationship. As to the remainder of the allegations stated in Paragraph 32 they are vague and ambiguous and, on that basis, Defendants deny generally and specifically said allegations. 33. Defendant denies the allegations set forth in Paragraph 33 of the Complaint. 8 FIRST COUNT 34. Defendant denies the allegations set forth in the First Count of the Complaint. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 35. The Complaint and each purported count asserted against Defendant therein, fails to state a claim upon which relief can be granted. The Complaint fails as the entire case is set up on the status of this Defendant as if a VAR when the real status is that of a partner in particular and qua Servolift. SECOND AFFIRMATIVE DEFENSE 36. Plaintiff's claims are barred in whole or in part by virtue of the Statue of Frauds. THIRD AFFIRMATIVE DEFENSE 37. The Plaintiff's have unclean hands with respect to their acts and omissions in matters relevant to its complaint. Plaintiff's claims are barred in whole or in part by the Doctrine of Unclean Hands, over reaching and fraud perpetrated on this Defendants and this Court by virtue of the allegations made by Plaintiff, which Plaintiff knows not to be true and not to have been caused by this Defendant. FOURTH AFFIRMATIVE DEFENSE 38. Plaintiff's claims are barred in whole or in part by the Doctrine of Estoppel. • 9 FIFTH AFFIRMATIVE DEFENSE 39. Plaintiff's claims are barred in whole or in part by virtue of the Doctrine of Unjust Enrichment as the Plaintiff received money which was not entitled to be received by the Plaintiff. SIXTH AFFIRMATIVE DEFENSE 40. Plaintiff's claims are barred in whole or in part by virtue of the Doctrine of Laches. SEVENTH AFFIRMATIVE DEFENSE 41. Plaintiff's claims are barred in whole or in part under the Statute of Limitations. EIGHTH AFFIRMATIVE DEFENSE 42. Plaintiff's claims are barred in whole or in part by virtue of Plaintiff's Breach of Contract. NINTH AFFIRMATIVE DEFENSE 43. Plaintiff has breached any agreement there may have been between Plaintiff and Defendant. TENTH AFFIRMATIVE DEFENSE 44. Plaintiff's claims are barred in whole or in part by virtue of the fact that Defendant has violated no duty to Plaintiff under Common Law, Statutory Law or otherwise. 10 ELEVENTH AFFIRMATIVE DEFENSE 45. Plaintiff's claims are barred in whole or in part by virtue of the meritless and frivolous nature of such claims. Defendant herein reserve the right to require Plaintiffs to pay the cost of the defense of the within action for frivolous litigation, inclusive or reasonable counsel fees and costs. TWELTH AFFIRMATIVE DEFENSE 46. Plaintiff's claims are barred in whole or in part by virtue of Defendants' compliance with all applicable law, regulations or standards, and in good faith at all time relevant herein. THIRTEENTH AFFIRMATIVE DEFENSE 47. Plaintiff's claims are barred in whole or in part by virtue of Plaintiff's misconduct. FOURTEENTH AFFIRMATIVE DEFENSE 48. Plaintiff's claims are barred in whole or in part by virtue of the fact Plaintiff, through his own actions and conduct, was the sole proximate cause of the action underlying the allegations of the Complaint. FIFTEENTH AFFIRMATIVE DEFENSE 49. Any actions taken by Defendant were done in good faith and without malice, willfulness or evil intent. SIXTEENTH AFFIRMATIVE DEFENSE 11 50. Plaintiff's claims are barred in whole or in part by virtue of Plaintiff's fraudulent conduct. SEVENTEENTH AFFIRMATIVE DEFENSE 51. Defendant performed fully and properly all of his duties with respect to the subject in issue, in conformity with the practices, procedures, and applicable statutory standards. EIGHTEENTH AFFIRMATIVE DEFENSE 52. Defendant reserves the right to amend this answer to assert additional affirmative defenses and/or counterclaims during or upon the completion of investigation and discovery. The Defendant also reserves right to file appropriate complaint in the state of New Jersey for recovery of amounts owing to this Defendant. WHEREFORE, Defendant hereby demands judgment dismissing the Complaint with prejudice, along with attorneys' fees and costs incurred in defending this action. VERIFICATION Raymond j Spellman deposes and says, subject to the penalties of 18 Pa. C.C. X4904 relating to unsworn falsification to authorities, that he makes this verification through 12 his authority and that the facts set forth in the foregoing document are true and correct to the best of his knowledge, information and belief. _,----- t~ Date: 3 ~ `I ~ ! v ~ Raymond J Spellman 13 R Raymond J Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 Defendant ~il. .. .. ._ I 1 LLIU..~'_r r! 'i c' It EXPRESS DYNAMICS, LLC d/b/a l IN THE COURT OF COMMON PLEASE WORKXPRESS, I CUMBERLAND COUNTY, Plaintiff, v. PENNSYLVANIA CIVIL ACTION -LAW No. 10-1041 Civil RAYMOND J SPELLMAN, Defendant. To: Robert J. Tribeck Rhoads & Sinon LLP Twelfth Floor One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 DEFENDANTS ANSWERS TO INTERROGATORIES Defendant, Raymond J Spellman, located at 327 Morris Avenue, Boonton New Jersey, 07005, responds to Plaintiff EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, First Set of Interrogatories, asfollows: GENERAL OBJECTIONS 1. Defendant objects to Plaintiff's Interrogatories to the extent that they seek disclosure of information protected by the attorney-client privilege, the attorney work product doctrine, the accountant-client privilege, or any other applicable privilege. 2. Defendant objects to Plaintiff's Interrogatories to the extent that they seek disclosure of Defendant's and/or its representatives mental impressions, conclusions or opinions respecting the value or merit of a claim or a defense or respecting strategy or tactics as protected by Pennsylvania Rule of Civil Procedure 4003.1 3. Defendant objects to Plaintiff's Interrogatories to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. 4. Defendant objects to Plaintiff's Interrogatories to the extent that they are overbroad, unduly and unreasonably burdensome, oppressive and vague. 5. Defendant objects to Plaintiff's Interrogatories to the extent that they call for information not known to Defendant, nor reasonably ascertainable by Defendant, because such information is in the hands of or under the control of third parties not within Defendant's control. 6. Defendant objects to Plaintiff's Interrogatories to the extent that they call for information already known to Plaintiff or information available to Plaintiff from sources other than Defendant which is equally assessable to Defendant and to Plaintiff. 7. Defendant objects to Plaintiff's Interrogatories to the extent that they are so vague and ambiguous that they are not subject to reasoned interpretation. 8. Defendant objects to Plaintiff's Interrogatories to the extent that they impose requirements to respond or supplement answers to interrogatories beyond those that are provided for in the Pennsylvania Rules of Civil Procedure. 9. The general objections asserted above shall be deemed to be applicable to and continuing with respect to each of Plaintiff s Interrogatories. The general objections asserted above are incorporated into each and every one of Defendant's responses set forth herein. Such objections are not waived, nor in any manner limited, by any responses to any specific interrogatory or any specific objection raised thereto. Defendant reserves the right to amend, supplement or alter its responses to Plaintiff's Interrogatories at any time. INTERROGATORIES 1. State with particularity the factual basis for Affirmative defense you are asserting in this case. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing: One, the proper venue for this case is Morris County, New Jersey. Two, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them. Three, our agreement has an end date. 2. Identify each person who has knowledge of facts concerning the issues raised in Plaintiff's Complaint and Defendant's Answer and with respect to each person so identified, state the facts of which they have knowledge. ANSWER: Defendant alleges that the following people have knowledge of the issues: Julie Spellman, Thomas Lertola and Treff LaPlante. 3. If you know of anyone who has given any statement (as defined by the Rules of Civil Procedure) concerning this action or its subject matter, state: a. the identity of such person; b. when, where, by whom, and to whom each statement was made, and whether it was reduced to writing or otherwise recorded; and c. the identity of any person who has custody of any such statement that was reduced to writing or otherwise recorded. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the Defendant does not currently recall anyone who has given any statement concerning this action. Defendant will supplement this request in a timely manner as applicable. 4. Identify each person you intend to call as a fact (non-expert) witness at the trial of this case, including a description of your relationship with the witness, and the substance of the facts and opinions, if any, to which the witness is expected to testify. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the following people have knowledge of the case: Julie Spellman and Thomas Lertola. 5. Identify all exhibits that you intend to use at the trial of this matter and state whether they will be used during the liability or damages portions of the trial. ANSWER: Plaintiff objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Further, Plaintiff has not determined what documents or exhibits it will rely upon at the time of trial to establish or prove its case. Defendant will supplement this request in a timely manner as applicable. 6. If you intend to use any admission(s) of a party at trial, identify such admission(s). ANSWER: Plaintiff objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Further, Plaintiff has not determined what admissions, if any it will use at trial. Defendant will supplement this request in a timely manner as applicable. 7. In ¶ 13 of your Answer to the Complaint you state "Concerning the oral agreement between Treff Laplante, Express Dynamics and WorkXpress, this oral agreement was made in the Defendant's office [in] New Jersey." Identify each fact which you claim supports this contention. A complete answer will include the date the agreement was formed, the identity of each witness with knowledge relative to this and of the alleged ratification of the agreement, how you claim the agreement was ratified, and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the revenue sharing agreement between Raymond Spellman, Treff Laplante and Express Dynamics was ratified by oral agreement and handshake at 327 Morris Avenue, Boonton New Jersey upon the sales presentation to Servolift. 8. In ¶14 of your Answer to the Complaint, you state "Defendant entered into an agreement with Mr. Laplante that defined the sharing of revenues for Defendants customer Servolift, LLC." Do you contend that the only term that Defendant and WorkXpress agreed upon was how to share the revenues with regard to customer Servolift? ANSWER: No. 9. If your answer to the foregoing interrogatory is "no," state with specificity the precise terms that you contend govern your relationship with WorkXpress. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff Laplante and Express Dynamics has an end date. 10. In your Answer to the Complaint, you specifically deny that you were a VAR for WorkXpress. State or describe how you characterize your relationship with WorkXpress from 2006 -2009 and identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the forgoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff Laplante and Express Dynamics has an end date. 11. Identify the specific services that you provided to customers, such as Servolift, pursuant to your oral agreement with WorkXpress. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the forgoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff Laplante and Express Dynamics has an end date. 12. In ¶15 of your Answer you state, in part, "As it concerns Servolift, Defendant contends that he `Own[er]s the Customer Relationship'. Treff Laplante, Express Dynamics and/or WorkXpress are simply technology service providers to Defendants' customer Servolift." With respect to the foregoing allegation, identify the facts that support this contention, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: "You Own The Customer Relationship" is a common statement by Treff Laplante, Express Dynamics and Work Express and used company wide. The company still uses the exact statement in printed materials it publishes. 13. In ¶17 of your Answer you state, in part, "VAR or Agency Agreements are irrelevant as it concerns Servolift." With respect to this allegation, identify each fact or circumstance that supports this contention, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff Laplante and Express Dynamics has an end date. Further, Defendant received a letter from Treff Laplante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff Laplante, Express Dynamics and or Work Express. 14. In ¶19 of your Answer you state, in part, "Express Dynamics...was unaware of the New Jersey based Servolift or Lertola and had no prior knowledge of their existence and no prior relationship with Servolift or their employees or their agents." Identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: Interrogatory 14 requires no further clarification. 15. In ¶19 of your Answer you state, in part, "Defendant never gave Plaintiff any right to terminate the agreement and Defendant is lawfully entitled to all funds rightfully earned and due from Servolift." Identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: Interrogatory 15 requires no further clarification. Neither Treff Laplante, Express Dynamics or WorkXpress has any right or authority to unilaterally cancel the revenue sharing agreement and keep all of the revenue from the Servolift contract for them. 16. In your "First Affirmative Defense" included in your Answer you state, "The Complaint fails as the entire case is set up on the status of this Defendant as if a VAR when the real status is that of a partner in particular and qua Servolift." Identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: Defendant received a letter from Treff Laplante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imuerative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff Laplante, Express Dynamics and or Work Express and is rightfully entitled to all monies agreed to in the revenue sharing agreement. 17. In your "Second Affirmative Defense" to Plaintiff s Complaint you state, "The Plaintiff s claims are barred in whole or in part by virtue of the Statue [sic] of Frauds." Identify each fact that supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWERS Defendant alleges that the Plaintiff has acted wrongly and committed "fraud" as demonstrated in Plaintiff s own letter to Defendant dated August 24, 2009 that states in part: "As stated in previous communications, your status as a partner of WorkXpress has been suspended since the end of March, due entirely to your lack of response regarding the type of partner you were electing to continue forward as. As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Plaintiff s own words prove that they want to transition the Defendant into an agency or value added reseller status. 18. Identify each fact supporting your "Third Affirmative Defense" to Plaintiff s Complaint. ANSWER: Defendant states in his Third Affirmative Defense, "Plaintiff s claims are barred in whole or in part by the Doctrine of Unclean Hands, over reaching and fraud perpetrated on this Defendants and this Court by virtue of the allegations made by Plaintiff, which Plaintiff knows not to be true and not to have been caused by this Defendant." Defendant alleges that the Plaintiff has acted wrongly and has "unclean hands" as demonstrated in Plaintiff s own letter to Defendant dated August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff Laplante, Express Dynamics and or Work Express. Defendant alleges that the Plaintiff has acted wrongly and has "over reached" as demonstrated in Plaintiff s own letter to Defendant dated August 24, 2009 that states in part: "As stated in previous communications, your status as a partner of WorkXpress has been suspended since the end of March, due entirely to your lack of response regarding the type of partner you were electing to continue forward as." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff Laplante, Express Dynamics and or Work Express and Plaintiff has over reached by suspending the partnership and keeping monies rightfully due Defendant. Defendant alleges that the Plaintiff has acted wrongly and committed "fraud" as demonstrated in Plaintiff's own letter to Defendant dated August 24, 2009 that states in part: "As stated in previous communications, your status as a partner of WorkXpress has been suspended since the end of March, due entirely to your lack of response regarding the type of partner you were electing to continue forward as. As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Plaintiff knows full well that Defendant never received any communication that suspended our agreement as of March of 2009. Further, Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff Laplante, Express Dynamics and or Work Express and Defendant alleges that the Plaintiff has committed fraud by suspending the partnership agreement, keeping monies rightfully due Defendant and attempting to transition defendant to a formalized agency or value added reseller status . 19. In your "Fifth Affirmative Defense" to Plaintiff's Complaint you state, "The Plaintiff's claims are in whole or in part by virtue of the Doctrine of Unjust Enrichment as the Plaintiff received money which was not entitled to be received by Plaintiff." Identify each fact that supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: Defendant alleges that the Plaintiff has been unjustly enriched by withhold money rightfully due Defendant. Plaintiff s own letter to Defendant dated August 24, 2009 states in part: "As stated in previous communications, your status as a partner of WorkXpress has been suspended since the end of March, due entirely to your lack of response regarding the type of partner you were electing to continue forward as. As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff Laplante, Express Dynamics and or Work Express and Plaintiff has no right to withhold monies rightfully due Defendant. 20. In your "Eighth Affirmative Defense" and "Ninth Affirmative Defense" to Plaintiff's Complaint, you contend that Plaintiff has breached the agreement between WorkXpress and Defendant. Identify each fact that supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the Defendant alleges that the Plaintiff has breached the agreement because: One, the proper venue for this case is Morris County, New Jersey. Two, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them. Three, our agreement has an end date. 21. In your "Eleventh Affirmative Defense" to Plaintiff's Complaint you state, "Defendant herein reserve[s] the right to require Plaintiffs to pay the cost of the defense of the within action for frivolous litigation, inclusive or reasonable counsel fees and costs." Identify contract or statute that you contend affords Defendant the right to counsel fees. Attach a copy of the referenced contract or statute to your answers. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Not withstanding the above objection Defendant alleges that Pennsylvania Judicial Code at 42 Pa.C.S.A. §2503(9) and Pennsylvania Rules of Civil Procedure Rule 1023.1, et seq. would be applicable. 22. In your "Sixteenth Affirmative Defense" to Plaintiff's Complaint you state, "Plaintiff's claims are barred in whole or in part by virtue of Plaintiff's fraudulent conduct." Identify each fact that you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: Defendant states in his Third Affirmative Defense, "Plaintiff s claims are barred in whole or in part by the Doctrine of Unclean Hands, over reaching and fraud perpetrated on this Defendants and this Court by virtue of the allegations made by Plaintiff, which Plaintiff knows not to be true and not to have been caused by this Defendant." Defendant alleges that the Plaintiff has acted wrongly and has "unclean hands" as demonstrated in Plaintiff s own letter to Defendant dated August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff Laplante, Express Dynamics and or Work Express. Defendant alleges that the Plaintiff has acted wrongly and has "over reached" as demonstrated in Plaintiff ~ own letter to Defendant dated August 24, 2009 that states in part: "As stated in previous communications, your status as a partner of WorkXpress has been suspended since the end of March, due entirely to your lack of response regarding the tyre of partner you were electing to continue forward as." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff Laplante, Express Dynamics and or Work Express and Plaintiff has over reached by suspending the partnership and keeping monies rightfully due Defendant. Defendant alleges that the Plaintiff has acted wrongly and committed "fraud" as demonstrated in Plaintiff s own letter to Defendant dated August 24, 2009 that states in part: "As stated in previous communications, your status as a partner of WorkXpress has been suspended since the end of March, due entirely to your lack of response regarding the type of partner you were electing to continue forward as. As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant alleges that the Plaintiff knows full well that Defendant never received any communication that suspended our agreement as of March 2009. Further, Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff Laplante, Express Dynamics and or Work Express and Plaintiff alleges that the Plaintiff has committed fraud by suspending the partnership agreement, keeping monies rightfully due Defendant and attempting to transition defendant to a formalized agency or value added reseller status . 23. In your Answer to Plaintiff's Complaint, you assert WorkXpress did not have the right, power or authority to change the terms of the Agreement. With respect to such allegation, identify each fact that supports this allegation, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: Defendant received a letter from Treff LaPlante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff Laplante, Express Dynamics and or Work Express. 24. Do you contend that your agreement with WorkXpress could never be terminated? ANSWER Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing our defense is: One, the proper venue for this case is Morris County, New Jersey. Two, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them. Three, our agreement has an end date. 25. State the factual basis for your answer to Interrogatory No. 24 and identify all documents supporting your answer. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. The Defendant is currently reviewing and locating documents and Defendant will supplement this request in a timely manner as applicable. 26. In your Answer to Plaintiff's Complaint, you deny that the oral agreement between WorkXpress and Defendant is terminable at will. Identify each fact supporting your contention, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the information contained in said allegation. ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton New Jersey 07005. Neither Treff Laplante, Express Dynamics or WorkXpress has any right or authority to unilaterally cancel the revenue sharing agreement and keep all of the revenue from the Servolift contract for them and for anyone to think that someone would agree to such a stipulation in an oral agreement is absurd. The agreement between Raymond Spellman, Treff Laplante and Express Dynamics has an end date. 27. Identify each expert that you intend to call as a witness at the trial of this matter, and for each such expert state: a. the subject matter about which the expert is expected to testify; and b. the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (You may file as your answer to this interrogatory the report of the expert or have the interrogatory answered by your expert.) ANSWER: Defendant may rely on experts and will supplement this request in a timely manner as applicable. 28. Are you withholding any documents from production in response to Plaintiff's first request for production of documents on the grounds of privilege? If so, identify each such document and separately state the grounds upon which each document was withheld (e.g. attorney client privilege or work product immunity) and the complete factual basis for the claim of privilege or immunity. ANSWER: None that I am aware of. CERTIFICATION I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment of the Court. ~ z 1 r c~ Dated: r ''' Raymond J Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 Defendant EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff, v. IN THE COURT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. 10-1041 Civil RAYMOND J SPELLMAN, Defendant. DEFENDANTS ANSWERS TO PRODUCTION OF DOCUMENTS r.a r~ a --- ,-~ °~ To: Robert J. Tribeck ~ `_-_ _ --, Rhoads & Sinon LLP ~ ~ r ~ -- `~ Twelfth Floor r ; ;: `-' One South Market Square _ PO Box 1146 ==-'~ = ~~ Harrisburg, PA 17108-1146 ~`-} ~:, ~ r.: Defendant, Raymond J Spellman, located at 327 Morris Avenue, Boonton New Jersey, 07005, responds to Plaintiff EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, First Set of Production of Documents, as follows: GENERAL OBJECTIONS 1. Defendant objects to Plaintiffs Production of Documents to the extent that they seek disclosure of information protected by the attorney-client privilege, the attorney work product doctrine, the accountant-client privilege, or any other applicable privilege. 2. Defendant objects to Plaintiff's Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. 3. Defendant objects to Plaintiff's Production of Documents to the extent that they are overbroad, unduly and unreasonably burdensome, oppressive and vague. 4. Defendant objects to Plaintiff s Production of Documents to the extent that they call for information not known to Defendant, nor reasonably ascertainable by Defendant, because such information is in the hands of or under the control of third parties not within Defendant's control. 5. Defendant objects to Plaintiff's Production of Documents to the extent that they call for information already known to Plaintiff or information available to Plaintiff from sources other than Defendant which is equally assessable to Defendant and to Plaintiff. 6. Defendant objects to Plaintiff's Production of Documents to the extent that they are so vague and ambiguous that they are not subject to reasoned interpretation. 7. The general objections asserted above shall be deemed to be applicable to and continuing with respect to each of Plaintiff's Production of Documents. The general objections asserted above are incorporated into each and every one of Defendant's responses set forth herein. Such objections are not waived, nor in any manner limited, by any responses to any specific interrogatory or any specific objection raised thereto. Defendant reserves the right to amend, supplement or alter its responses to Plaintiff's Production of Documents at any time. PRODUCTION OF DOCUMENTS 1. Any and all documents which refer, relate to, pertain to, or define your agreement with WorkXpress. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. 2. Any and all documents which refer, relate to, pertain to, or define the specific terms of your agreement with WorkXpress. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. 3. Any and all documents which support your claim that the agreement between Defendant and WorkXpress was formed or ratified in New Jersey. Answer Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the agreement between Defendant and Treff LaPlante, Express Dynamics and or WorkXpress was oral. Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Spellman answered in Interrogatory 7 that, "the revenue sharing agreement between Raymond Spellman, Treff LaPlante and Express Dynamics was ratified by oral agreement and handshake at 327 Morris Avenue, Boonton New Jersey upon the sales presentation to Servolift." Defendant has not located any document requested in Production of Documents 3 and Defendant will supplement this request in a timely manner as applicable. 4. Any and all documents which evidence, refer, relate or pertain to your claim that the agreement between the parties cannot be terminated. Answer Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the agreement between Defendant and Treff LaPlante, Express Dynamics and or WorkXpress was oral. Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status. Although we have offered and remain interested in providing that documentation to you for your review so that we can precisely define the terms and conditions for our relationship, to date, you have refused to even review that documentation. We have received no response from you indicating your willingness to cooperate in this regard. If you fail to respond to this final request to consider formalizing our arrangement, then we will consider our relationship to have been terminated by you." Defendant alleges that if Plaintiff believed that they had the right to terminate the agreement why would they simply not have done it on August 24, 2009? In Production of Documents 4 Defendant will supplement the request in a timely manner as applicable. 5. Any and all documents which evidence, refer, relate or pertain to your claim that the terms of the agreement cannot be changed. Answer Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the agreement between Defendant and Treff LaPlante, Express Dynamics and or WorkXpress was oral. Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status. Although we have offered and remain interested in providing that documentation to you for your review so that we can precisely define the terms and conditions for our relationship, to date, you have refused to even review that documentation. We have received no response from you indicating your willingness to cooperate in this regard. If you fail to respond to this final request to consider formalizing our arrangement, then we will consider our relationship to have been terminated by you." Exhibit B, Email from Defendant to Treff LaPlante, dated March 12, 2009 states, "Concerning your VAR or AGENCY AGREEMENTS these are irrelevant to me as it concerns Servolift. I provide service, support and I will provide the billing going forward as this seems to be an issue for Express Dynamics. ANY attempted change in my compensation will. be immediately addressed." Exhibit C, letter from Defendant to Treff LaPlante, dated August 13, 2009 states, "Our agreement was clearly defined and clearly understood. I am not going to sign any other agreement ..." Exhibit D, Email from Defendant to Treff LaPlante, dated September 1, 2009 states, "Although I appreciate your desire to re-negotiate our partnership agreement as it concerns Servolift, it is not something I feel needs to be addressed. The simple fact of the matter is that you are holding money due me from the Servolift account, since April, apparently in an attempt to extract some type of concession. You have no right to do so. I have demanded the money due me and you have refused to release it." In Production of Documents 5 Defendant will supplement the request in a timely manner as applicable. 6. Any and all documents which evidence, refer, relate or pertain to your contention that in order for Plaintiff to terminate or change the parties' agreement, Defendant must have given Plaintiff the authority to do so. Answer Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the agreement between Defendant and Treff LaPlante, Express Dynamics and or WorkXpress was oral. Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status. Although we have offered and remain interested in providing that documentation to you for your review so that we can precisely define the terms and conditions for our relationship, to date, you have refused to even review that documentation. We have received no response from you indicating your willingness to cooperate in this regard. If you fail to respond to this final request to consider formalizing our arrangement, then we will consider our relationship to have been terminated by you." Exhibit B, Email from Defendant to Treff LaPlante, dated March 12, 2009 states, "Concerning your VAR or AGENCY AGREEMENTS these are irrelevant to me as it concerns Servolift. I provide service, support and I will provide the billing going forward as this seems to be an issue for Express Dynamics. ANY attempted change in my compensation will be immediately addressed." Exhibit C, letter from Defendant to Treff LaPlante, dated August 13, 2009 states, "Our agreement was clearly defined and clearly understood. I am not going to sign any other agreement ..." Exhibit D, Email from Defendant to Treff LaPlante, dated September 1, 2009 states, "Although I appreciate your desire to re-negotiate our partnership agreement as it concerns Servolift, it is not something I feel needs to be addressed. The simple fact of the matter is that you are holding money due me from the Servolift account, since April, apparently in an attempt to extract some type of concession. You have no right to do so. I have demanded the money due me and you have refused to release it." In Production of Documents 6 Defendant will supplement the request in a timely manner as applicable. 7. Any and all documents in your possession that refute WorkXpress' position that the agreement was terminable at will. Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the agreement between Defendant and Treff LaPlante, Express Dynamics and or WorkXpress was oral. Further, the first time that defendant encountered the phrase "Terminable at Will," either verbally or in writing as it concerns Plaintiff was in Plaintiff s Complaint for Declaratory Judgment written by Rhoads and Sinon, Attorneys for Plaintiff. Defendant states that the phrase "Terminable at Will" was never stated in our verbal agreement and it is incomprehensible to believe that a verbal agreement would have such a clause. Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status. Although we have offered and remain interested in providing that documentation to you for your review so that we can precisely define the terms and conditions for our relationship, to date, you have refused to even review that documentation. We have received no response from you indicating your willingness to cooperate in this regard. If you fail to respond to this final request to consider formalizing our arrangement, then we will consider our relationship to have been terminated by you." In Production of Documents 7 Defendant will supplement the request in a timely manner as applicable. 8. Any and all documents which refer, relate to, pertain to or define your relationship and contacts with Servolift, LLC. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. 9. Any and all documents which evidence, refer, relate or pertain to your contention that Defendant "owns the customer relationship" with Servolift. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the forgoing Spellman answered in Interrogatory 12 that, "You Own The Customer Relationship" is a common statement by Treff LaPlante, Express Dynamics and Work Express and used company wide. The company still uses the exact statement in printed materials it publishes. In Production of Documents 9 Defendant will supplement the request in a timely manner as applicable. 10. Any and all documents which evidence, refer, relate or pertain to your contention that WorkXpress was unaware of Servolift or Lertola and had no prior knowledge of their existence and no prior relationship with Servolift or their employees or their agents. Answer Spellman answered in Interrogatory 14 that, "Interrogatory 14 requires no further clarification." In Production of Documents 10 Defendant will supplement the request in a timely manner as applicable. 11. Any and all documents in support of your claim that WorkXpress' current relationship with Servolift is solely the result of Defendant's efforts or connections. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 11 Defendant will supplement the request in a timely manner as applicable. 12. Any and all documents that demonstrate the services provided by Defendant to Servolift from 2002- present. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 12 Defendant will supplement the request in a timely manner as applicable. 13. Any and all documents authorizing Defendant to impose a service charge on invoices issued to WorlcXpress. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 13 Defendant will supplement the request in a timely manner as applicable. 14. Any and all documents authorizing Defendant to collect a flat rate of $600 from WorkXpress with regard to Servolift going forward concerning Servolift. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 14 Defendant will supplement the request in a timely manner as applicable. 15. Any and all documents governing and/or prohibiting Plaintiff's communications with Servolift. Answer Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the agreement between Defendant and Treff LaPlante, Express Dynamics and or WorkXpress was oral. Exhibit D, Email from Defendant to Treff LaPlante, dated September 1, 2009 states, "Further, our agreement also included that all communication with the account was to go through me. Apparently your sales, marketing and customer service representatives have been contacting Servolift directly and I am requesting that you immediately stop this practice. This account was and is my client and you have, no right to contact them. Your failure to immediately do so is actionable on my part." In Production of Documents 15 Defendant will supplement the request in a timely manner as applicable. 16. Any and all documents supporting your suggestion that Defendant could change the billing arrangement and bill Servolift directly. Answer Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the forgoing the agreement between Defendant and Treff LaPlante, Express Dynamics and or WorkXpress was oral. Exhibit E, Email from Defendant to Treff LaPlante, dated December 26, 2007 states, "I also need to know what you want to do about Servolift. Their annual software contract starts in January so we will fmally start getting licensing fees. Per our agreement it is my responsibility to bill them and collect the funds passing them along to Express Dynamics. I will drop off an invoice for them this week. I simply wanted to make you aware of it. I also asked them about increasing the number of licenses but they said they should be fine for 2008. Exhibit F, Check from Servolift to Express Dynamics, dated February 24, 2006 shows the check addressed to Defendants home/office address. In Production of Documents 16 Defendant will supplement the request in a timely manner as applicable. 17. All documents identified or relied upon in answering Plaintiffls First Set of Interrogatories. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 17 Defendant will supplement the request in a timely manner as applicable. 18. Any and all exhibits you intend to use at the trial of this matter.. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 18 Defendant will supplement the request in a timely manner as applicable. 19. All documents which evidence, relate to, or pertain to any alleged damages you claim or may claim are owed by Plaintiff to you. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 19 Defendant will supplement the request in a timely manner as applicable. 20. Any and all diaries, planners, PDA files, personal notes, text messages, emails, calendars or journals which you may have kept from the time your agreement with Plaintiff began to the present. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 20 Defendant will supplement the request in a timely manner as applicable. 21. All statements, summaries of statements, transcripts of recorded statements or interviews, or any memoranda or transcripts of statements or interviews of any parry, person or witness, or their agents or employees, relating to, referring to or in any way describing the allegations and events regarding the issues of this case, who have any knowledge of the facts surrounding any of the matters, transactions or occurrences involved in this case. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 21 Defendant will supplement the request in a timely manner as applicable. 22. Attached to each statement provided pursuant to the preceding request should be an explanation including: a. the name, address and occupation of the person who gave the statement, and of the person who obtained the statement and the date and time it was obtained; and b. the manner in which the statement was taken; i.e., electronic recording, written, oral, etc. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 22 Defendant will supplement the request in a timely manner as applicable. 23. All documents which evidence, relate to, pertain to, support, or were created in an attempt to disprove the allegations in Plaintiff's Complaint, including, but not limited to, diaries, notebooks, journals, calendars, appointment books, notes, correspondence, memoranda, and tape recordings. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 23 Defendant will supplement the request in a timely manner as applicable. 24. All documents prepared by you, or by a representative, agent, or anyone acting on your behalf, except your attorneys, during an investigation of the allegations and events regazding the issues of this case, or prepazed in anticipation of litigation or trial of this matter. Such documents shall include any documents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions, or the opinions respecting the value or merit of the claim or respecting strategy or tactics. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 24 Defendant will supplement the request in a timely manner as applicable. 25. All statements of any person(s) who will be called as witness at trial of this matter. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. Defendant may rely on witnesses at trial and will supplement this request in a timely manner as applicable. 26. All demonstrative evidence which will be introduced or used at trial. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. Defendant may rely on demonstrative evidence at trial and will supplement this request in a timely manner as applicable. 27. For each expert intended to be called as a witness at trial, all expert opinions, expert reports, expert summaries or other writings in your custody or control or in the custody or control of your attorneys, agents or representatives, which relate to the subject matter of this litigation and the proposed testimony of the preparer of such opinion, report, summary or other writing. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. Defendant may rely on experts at trial and will supplement this request in a timely manner as applicable. 28. A current Curriculum Vitae for each expert retained by you or your attorneys in connection with this case who will testify at trial. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. Defendant may rely on experts at trial and will supplement this request in a timely manner as applicable. In Production of Documents 28 Defendant will supplement the request in a timely manner as applicable. 29. All documents, including but not limited to, advertisements, circulars, brochures, pamphlets, leaflets, writings, and other such promotional items any expert witness you have retained for use at trial uses and has used in the past to promote his services as an expert witness. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 29 Defendant will supplement the request in a timely manner as applicable. 30. All documents, diaries, correspondence or other drawings, sketches, diagrams, or writings in your custody or in the custody or control of your attorneys, which relate to the subject matter of this litigation. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 30 Defendant will supplement the request in a timely manner as applicable. 31. Any and all documents, potential exhibits, or other tangible thing, including, but not limited to, electronic or video recordings, films, photographs, diagrams and charts, believed by you or anyone acting on your behalf to have potential probative value regarding your claims/defenses in this matter. Provide the name and address of the person presently having possession, custody or control of each such item. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 31 Defendant will supplement the request in a timely manner as applicable. 32. Any and all documents which relate, in any way, to Plaintiff. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 32 Defendant will supplement the request in a timely manner as applicable. 33. All correspondence relating to the Complaint, Answer, or Affirmative Defenses filed in this matter, including but not limited to correspondence between the parties to this litigation and any correspondence to third parties regarding the subject matter of this litigation. Answer Defendant objects to Plaintiff s Production of Documents to the extent that they call for information regarding matters not relevant to the subject matter of this action and not reasonably calculated to lead to the discovery of admissible evidence. In Production of Documents 33 Defendant will supplement the request in a timely manner as applicable. CERTIFICATION I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment of the Court. ~] ~ l v Da ed: Treff LaPlante WorkXpress 453 Lincoln St. #114 Carlisle, PA 17013 Ray Spellman 327 Morris Avenue Boonton, New Jersey 07005 August 24, 2009 Dear Ray, As stated in previous communications, your status as a partner of WorkXpress has been suspended since the end of March, due entirely to your lack of response regarding the type of partner you were electing to continue forward as. As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status. Although we have offered and remain interested in providing that documentation to you for your review so that we can precisely define the terms and conditions for our relationship, to date, you have refused to even review that documentation. We have received no response from you indicating your willingness to cooperate in this regard. If you fail to respond to this final request to consider formalizing our arrangement, then we will consider our relationship to have been terminated by you. Kind Regards, Treff LaPlante cc: Kevin M. Gold, Esquire (via email) 739338.1 ~ tick ~s ~ i ~ Thu, March 12, 2009 12:33:50 PM Re: your invoices From: Ray Spellman <rayspellman@yahoo.com> View Contact To: treff@expressdynamics.com Treff: That was very funny. If you were having trouble collecting Servolift funds it would be appropriate to contact me so that I can handle the situation. To expedite this I am going to visit Servolift and let them know I will be invoicing and collecting the funds each month and I can forward the balance to you. As a reminder, at the time of the signing of the contract we agreed that it would be more expediant to have Express Dynamics send the invoices. Clearly this seems to be an issue now and I will surely address it with Servolift. I am clearly capable of sending invoices as I have been doing so since 1988. Further, I have been servicing Servolift the entire time. My recent trip to PA surely demonstrates that. To date, there have been no issues with Servolift except for a few minor issues that Servolift had that was software related. Those software issues could only be solved by the Express Dynamics technical support start: Concerning your VAR or AGENCY AGREEMENTS these are irrelevant to me as it concerns Servolift. I provide service, support and I will provide the billing going forward as this seems to be an issue for Express Dynamics. ANY attempted change in my compensation will be immediately addressed. If Express Dynamics took it upon themselves, without discussing it with me, to voluntarily reduce service fees to Servolift they do so at there own cost and expense. This should have been discussed with me. It would have been MY place to present it to Servolift. The reduction in fees is nothing short of idiotic. I do not care what model you are moving to. Both Tom and Mark thought the unwarranted price reduction was nothing short of "Poor Business" on the part of Express Dynamics. They both said they would have never done it. Should Express Dynamics decide to reduce their fees to Servolift - go ahead. However, my fee will stay unchanged. I will not reduce my $600 fee I do not care what you charge them. Moving forward I will continue to service Servolift and am finalizing the Growth Xpress concept we discussed. Kim Broida is moving to New Jersey to work with me on it. Lastly, you have my invoices. I am not mailing others. Please make the payment Ray ~~~ i~ i ( ~ Raymond Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 August 13, 2009 Express Dynamics Murata Business Center 453 Lincoln Street Suite 114 Carlisle, PA 17013 Re: Servolift: Habitually Late Payment Treff: Pursuant to our partnership agreement it was agreed that any and all revenue due me in reference to Servolift would be transferred immediately upon your receipt from the client. The amounts owed were clearly understood and I am not obligated to write Express Dynamics an invoice or take any other action as it concerns these payments. Our agreement is that your receipt of the payment from Servolift triggers a payment to me. From the beginning you have failed to honor our agreement and transfer these funds to me upon your receipt. Further, your comment that you get busy and forget to send me my share from the partnership is neither warranted nor appreciated. Upon receipt of payment from Servolift you should immediately write a check to me. If you can remember to deposit the Servolift check you can remember to send me what is due me per our agreement. Demand is now being made for the amount stipulated in the invoice and statement of August 13, 2009 which is attached. I am anticipating that this invoice is paid within 7 days of the writing of this letter. I am further anticipating that you will honor our agreement and I will be receiving payment immediately upon receipt of the payment from the client. I am not obligated to send invoices nor am I going to send any further reminders. You built this cutting edge technology. Perhaps you can build a program that sends me the money I earned. ~~~r~~~ C Our agreement was clearly defined and clearly understood. I am not going to sign any other agreement nor am I obligated to compensate Express Dynamics for work they perform in performance of the contract with Servolift. This account, because of my leadership, skills and salesmanship has been tremendously profitable for you. Express Dynamics goes back to Servolift time and time again for testimonials and marketing related promotions. This is only possible because of my 10 year relationship with key members of Servolift and my continued servicing of the account. If this issue is not rectified immediately you will leave me no further choice but to escalate this matter. I should not have to spend any time collecting money that is rightfully due me. This is the final notice you will receive. Going forward I expect to be receiving monthly payments. You would feel the exact same way. I further expect you will immediately do the right thing and move forward with more important matters. Your Friend, Raymond J Spellman ~~hi~ i / ~ Tue, September 1, 2009 4:24:16 PM Re: your recent communication From: Ray Spellman <rayspellman@yahoo. com> View Contact To: Treff LaPlante <treff@worl~press.com> Treff: ~,~... _a ~ ~.~~...,~. Although I appreciate your desire to re-negotiate our partnership agreement as it concerns Servolift, it is not something I feel needs to be addressed. The simple fact of the matter is that you are holding money due me from the Servolift account, since April, apparently in an attempt to extract some type of concession. You have no right to do so. I have demanded the money due me and you have refused to release it. As stated in my last communication if I did not receive the money due me from Servolift by September 1, 2009 I was going to file a summons and complaint. I can assure you that you will be ordered to pay the money. Further, our agreement also included that all communication with the account was to go through me. Apparently your sales, marketing and customer service representatives have been contacting Servolift directly and I am requesting that you immediately stop this practice. This account was and is my client and you have no right to contact them. Your failure to immediately do so is actionable on my part. I am very disappointed that it has come to this. See you soon, Ray ~~~~~~i~ . , Wed, December 26, 2007 9:24:28 AM Happy Holidays From: Ray Spellman <rayspellman@yahoo.com> View Contact To: Treff Laplante <treff@expressdynamics.com> .. Treff: Happy Holidays. Last Wednesday we complete (every single detail) of the new house I have been building. When we sold the old house (September 2006) we sold everything with it (except for about 10 boxes of very personal items and some kitchen stuff. We were looking to purge and for a clean start. It is a lot more difficult than it sounds. If I never see another furniture company again it will be to soon. Anyway, our new house is mostly furnished and we still need some of the nice decorations but we are certainly livable and thrilled with the final result. Per tradition, my entire extended family came to our house for C'hristtl~as -approximately 35 people. It will be nice to slow down. I also need to know what you want to do about Servolift. Their annual software contract starts in January so we will finally start getting licensing fees. Per our agreement it is my responsibility to bill them and collect the funds passing them along to Express Dynamics. I will drop off an invoice for them this week. I simply wanted to make you aware of it. I also asked them about increasing the number of licenses but they said they should be fine for 2008. They are doing great financially and the system is a big help. Also, we really should get together personally and business wise. I could make a huge impact with Express Dynamics and it would be nice if we could work something out. Once again, Merry Christmas. Raymond i. . ~~ ~~ A ~~ 8~ N W p{ U tTii 0 8 ~oq P ti N W W 4l 00 00 c 00 g gg~ ~ w~ N x «' 3 0 , Q O 8 O to O rv r rv O .~l .L7 b i ru O !G O O -~ .L t w Fa~Wrw Y~ck~dW ~~ m ... ~ ~~~ ~•~~ ~ ~~~ z°~~ ao c. ~o ~• hf, ~. i a u Z ~ ~ N S f Z f N y W p p - M. l~ 8 p-. y Q ~~ N M A Owlro on E~clc. ~~~~~ ~ c F EXPRESS DYNAMICS, LLC, d/b/a WORKERESS, Plainti vs. RAYMOND S~PELLMAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 10-1041 CIVIL IN RE: PLAINTIFF' S MOTION TO COMOPEL ORDER AND 1~f OW, this 4 ` day of July, 2010, argument on the above-captioned matter set for July 8, 201 p, is continued to Thursday, August 19, 2010, at 3:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, ~ Kelly H. Decider, Esquire For the Plaintiff Raymond Spellman, Pro Se Defendant :rim ~ es rrr.~c 7~Q~,d ~~ Kevin A. kless, P. J. n ~ -„ ~. , -+ ~ r:- ~.~. _ ._ ~~ Y ; f~ ~~ ,, ~- ~-. ,; s. .. .~ Cq/A~ { ~ .l. a ~ . ~~,•, PRAECIPE FOR LISTING CASE FOR ARGUMENT Must be typed and submitted in Triplicate ~~ ~ Q ~;,;_; ~ J ~,, ~ i 3~ ~~- Iq'lXT' b l~J TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the with~vrlt~tter for the, .f~;~1' next Argument Court.) ; t:=? , ~ ~'t: }, ' ~= ------------------------------------------------------------------------------------------------------------------ Express Dynamics, LLC d/b/a WorkXpress vs. Raymond Spellman No. 1041, 2010 Term l . State matter to be azgued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion to Compel Plaintiff Express Dynamics, LLC d/b/a WorkXpress to Answer Interrogatories Pursuant to PA.R,C.P 4019 2. Identify all counsel who will argue cases: a. for plaintiffs: Kelly Decker, ESQ., Rhoads & Sinon LLP,1 So. Market Sqr, Harrisburg, PA 17101 b. for defendants: Raymond Spellman, Defendant, 327 Morris Avenue, Boonton, NJ 07005 3. I will notify all parties in writing within two days that this case has been listed for azgument. 4. Argument Court Date: August 19, 2010 at 3:30 pm in Courtroom 4 OR October 2 0 (Depending on Honorable Kevin A. Hess' ~ilinQJ n~ Raymond J Spellman Defendant Date: ~~ 1~TSTRUCTIONS: 1. OriginP:l and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) j~:;fore argument. 2. The moving party shall ffle and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. ~. Ifargument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff V. RAYMOND SPELLMAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-1041 CIVIL TERM IN RE: MOTION OF THE PLAINTIFF TO COMPEL ANSWERS TO INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS ORDER OF COURT AND NOW, this 24th day of August, 2010, it appearing that the Defendant has filed answers to the Plaintiff's interrogatories, but the Plaintiff having taken the position that said answers are in part insufficient, further argument on the Motion to Compel is set for Thursday, October 7, 2010, at 3:30 p.m. at which time the Court will also hear argument on the Defendant's Motion to Compel the Plaintiff's answers to interrogatories to the extent that alleged deficiencies in those answers have not been resolved. Also, on the aforementioned date and time, the Court will entertain argument concerning the Motion to Compel the Defendant to attend a deposition. By the Court, M ' N C' ) t to 71 L tv , . a C Kevin,/A. Hess, P.J. ? Kelly H. Decker, Esquire RHOADS & SINON LLP One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 For the Plaintiff ---"Raymond J. Spellman 327 Morris Avenue Boonton, NJ 07005 :lfh (1-3cE-s m.?t LCCL g?2S?l? Raymond J Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 Defendant EXPRESS DYNAMICS, WORKXPRESS, Plaintiff, V. RAYMOND J SPELLMAN, Defendant. RM-OFRM lp THF M --1-w-N 40T MY +J A!?G 25 AM 8: 26 '6. y to WUNN CUM S PENNSYLV" AVU 7 012010 IN THE COURT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYLVANIA LLC d/b/a CIVIL ACTION - LAW No. 10-1041 Civil RULE TO SHOW CAUSE AND NOW, this _ 2-Y' day of /I wo" 2010, upon consideration of the foregoing motion, it is hereby ordered that: 1. a rule is issued upon the respondent to show- cause why the petitioner is not entitled to the relief requested; 2. the respondent shall file an answer to the motion within Zd days of this date; 3. the motion shall be decided under Pa.R.C.P. No. 206.7; 4. argument shall be held on Oceobv 7 , 2010 at 3:30 p.m. in Courtroom `t of the Cumberland County Courthouse; and 5. notice of the entry of this order shall be provided to all parties by the petitioner. BY THE COURT: Robert. Tribeck, Esquire Attorney I.D. No. 74486 Kevin M. Gold, Esquire Attorney [.D. No. '70265 Kelly H. Decker, Esquire Attorney I.D. No, 84886 RHOADS & SINON UP One South Market Square, 12th Floor P.O. Box 11,16 Harrisburg, PA 17108-1146 (717) 233-5731 Alforrrets for Etpress Drrramics, LLC dlb,ca WorkXpress c 10 3V 13 : 1`1 G' '1-y EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff V. RAYMOND SPELLMAN Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10- 1041 PLAINTIFF'S SUPPLEMENTAL MOTION TO COMPEL DEFENDANT RAYMOND SPELLMAN'S ANSWERS TO INTERROGATORIES AND REQUESTS FOR PRODUCTION OF DOCUMENTS AND DEPOSITION PURSUANT TO PA. R. CIV. P. 4019 NOW COMES, Plaintiff, Express Dynamics, LLC d/b/a WorkXpress, by and through its attorneys, Rhoads & Sinon LLP, and files the within Supplemental Motion to Compel Defendant Raymond Spellman's Answers to Interrogatories and Requests for Production of Documents and Deposition pursuant to Rule 4019(a)(1) of the Pennsylvania Rules of Civil Procedure, stating as follows: On May 28, 2010, Plaintiff Express Dynamics, LLC d/b/a WorkXpress ("Plaintiff') filed a Motion to Compel Defendant's Answers to Interrogatories and Requests for Production of Documents. 2. Plaintiff's First Set of Interrogatories and Requests for Production of Documents were served on Defendant Raymond Spellman ("Defendant") on or about April 2, 2010. On June 2, 2010, this Honorable Court issued a Rule to Show Cause stating that Defendant had twenty (20) days within which to file an answer to the motion and that an argument would be heard on the matter on July 8, 2010. 4. Defendant did not file an answer to the Motion but instead sent his untimely and deficient Answers to Interrogatories and Requests for Production of Documents to Plaintiff's counsel on July 7, 2010. Based on the receipt of those answers and the time constraints on reviewing those answers prior to argument the following day, this Court continued the argument on Plaintiff's Motion to Compel until Thursday, August 19, 2010. 6. Plaintiff's counsel appeared for argument on its Motion to Compel on Thursday, August 19, 2010 Defendant, although provided with ample notice of the Thursday, August 19, 2010, hearing, and himself requesting that his own Motion to Compel Plaintiff's Answers to Interrogatories and Requests for Production of Documents be heard on the same date, failed to appear at the hearing. This Honorable Court, by Order dated August 24, 2010, scheduled further argument on Plaintiff's Motion to Compel for Thursday, October 7, 2010, as well as on Plaintiff's Motion to Compel the Defendant's Deposition and on Defendant's Motion to Compel the Plaintiffs Answers to Interrogatories and Requests for Production of Documents. 9. Pursuant to the Order dated August 24, 2010, Plaintiff supplements its original Motion to Compel with this Supplemental Motion in order to address the deficiencies of Defendant's Answers to Interrogatories and Requests for Production of Documents. SPECIFIC DEFICIENCIES I 0. Plaintiff's Interrogatory No. 2 states, "Identi fy each person who has knowledge of facts concerning the issues raised in Plaintiff s Complaint and Defendant's Answer and with respect to each person so identified, state the facts of which they have knowledge." 11. Defendant's Answer to this Interrogatory was, "Defendant alleges that the following people have knowledge of the issues: Julie Spellman, Thomas Lertola and Treff LaPlante." 12. The Answer to Interrogatory No. 2 is deficient in that while it does answer the first part of the Inter7ogatory regarding the identity of people with knowledge of the facts concerning the issues in this case, Defendant fails to address in any way the second part of the Interrogatory regarding the facts of which those named individuals have knowledge. This is information that is reasonably calculated to lead to the discovery of admissible evidence and must be answered by Defendant. 13. Plaintiffs Interrogatory No. 10 states, "In your Answer to the Complaint, you specifically deny that you were a VAR for WorkXpress. State or describe how you characterize your relationship with WorkXpress from 2006 -2009 and identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation." 14. Defendant's Answer to this Interrogatory was, "Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton, New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenues from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date." 15. Defendant's Answer to Interrogatory No. 10 is nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant describe his relationship with WorkXpress from 2006-2009. 16. Defendant's objections are unreasonable in that the Interrogatorv clearly is calculated to lead to the discovery of admissible evidence in that Defendant's position with WorkXpress is clearly a significant matter in this case. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding Defendant's beliefs regarding his relationship with WorkXpress during the course of his employment. 17. Additionally, the information that Defendant does provide after his objections to Interrogatory No. 10 is not in any way responsive to Plaintiff's Interrogatory. Plaintiff requested Defendant's characterization of his relationship with WorkXpress during 2006-2009. Defendant merely stated that venue was improper and that Plaintiff had no right to cancel the agreement, 18. This Answer to Interrogatory No. 10 is completely nonresponsive and deficient. 19. Plaintiff's Interrogatory No. 1 I states, "Identify the specific services that you provided to c?rstomers, such as Servolift, pursuant to your oral agreement with WorkXpress." 20. Defendant's Answer to Interrogatory No. 1 I was, "Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome ?,?nd seek information that is not reasonably calculated to lead to the discovery of' admissible evidence. Notwithstanding the foregoing the proper venue for this case is Morris County, Nekl Jersey as the agreement was ratified at 327 Morris .Avenue, Boonton, New Jersey 4 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date." 21. Defendant's Answer to Interrogatory No. 1 I is equally as nonresponsive as the Answer to Interrogatory No. 10. 22. Plaintiff specifically requests that Defendant describe the services that he provided to customers h,ursuant to the oral agreement with WorkXpress. As discussed in the analysis above regarding Dcfendant's Answer to Interrogatory No. 10, Defendant's objections are unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that Defendant's services to WorkXpress's customers are clearly a significant matter in this case. 23. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding Defendant's services to WorkXpress's customers during the length of the oral agreement. Additionally, the information that Defendant does provide after his objections is not in any way responsive to Plaintiff's Interrogatory. Defendant merely stated that venue was improper and that Plaintiff had no right to cancel the agreement. Defendant does not in any way address the services that he purportedly provided to customers. 24. This Answer to Interrogatory No. 11 is completely nonresponsive and deficient. 25. Plaintiff's Interrogatory No. 13 states, "hi 1] 17 of your Answer you state, in part, "VAR or A-,ency Agreements are irrelevant as it concerns Servolift." With respect to this allegation, identify each fact or circumstance that supports this contention, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the infonnation contained in said allegation." 5 26. Defendant's Answer to Interrogatory No. 13 was, "Defendant objects to this interrogatory as vague and ambiguous, and on the ground that overly broad and unduly burdensome. Notwithstanding the foregoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morns Avenue, Boonton, New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date. Further, Defendant received a letter from Treff LaPlante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff LaPlante, Express Dynamics and or Work Express." 27. Defendant's Answer to Interrogatory No. 13 is completely nonresponsive as well. 28. Plaintiff specifically requests that Defendant identify facts and witnesses supporting his contention that VAR/Agency Agreements are irrelevant as they concern Servolift. As discussed in the analysis above regarding Defendant's Answers to Interrogatories Nos. 10 and 11, Defendant's objections arc unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that the oral agreement as it pertains to Servolift is clearly a significant matter in this case. 29. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding the oral agreement at issue in this case. Additionally, the information that Defendant does provide after his objections is not in any way responsive to Plaintiff's Interrogatory. 6 Defendant merely stated that venue was improper and that Plaintiff had no right to cancel the agreement. Defendant does not in any way address the services that he purportedly provided to customers. 30. The rest of the Answer to Interrogatory No. 13 simply argues that "Defendant has no obligation" to alter his arrangement with Plaintiff but again, Defendant fails to in any way address the actual information requested in the Interrogatory. 31. This Answer to Interrogatory No. 13 is completely nonresponsive and deficient. 32. Plaintiff's Interrogatory No. 14 states, "In X19 of your Answer you state, in part, "Express Dynamics ...was unaware of the New Jersey based Servolift or Lertola and had no prior knowledge of their existence and no prior relationship with Servolift or their employees or their agents." Identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation." 33. Defendant's Answer to Interrogatory No. 14 was, "Interrogatory 14 requires no ftirther clarification." 34. Defendant's Answer to Interrogatory No. 14 is completely nonresponsive and deficient. In fact, the Answer is so deficient that it is as if Defendant had merely left this Answer blank. Defendant has an obligation to answer these Interrogatories. 35. Interrogatory No. 14 merely requests that Defendant support his contention that Plaintiff was unaware of Servolift or Lertola until Defendant became involved with Plaintiff. In order to make such a contention, Defendant must have some basis for his claim; therefore, Defendant mi.ist provide the facts and/or witnesses that support such a sweeping statement. 7 36. Defendant's Answer to Interrogatory No. 14 is clearly nonresponsive and deficient. 37. Plaintiff's Interrogatory No. 15 states, "in 1119 of your Answer you state, in part, "Defendant never gave Plaintiff any right to terminate the agreement and Defendant is lawfully entitled to all funds rightfully earned and due from Servolift" Identify each fact which. you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation." 38. Defendant's Answer to Interrogatory No. 15 was, "Interrogatory 15 required no further clarification. Neither Treff LaPlante, Express Dynamics or WorkXpress has any right or authority to unilaterally cancel the revenue sharing agreement and keep all of the revenue from the Servo] ift contract for them." 39. Defendant's Answer to Interrogatory No. 15 is completely nonresponsive and deficient. Interrogatory No. 15 merely requests that Defendant support his contention that Plaintiff had no right to terminate the agreement and that Defendant was entitled to continue receiving fiends from Servolift. In order to make such it contention, Defendant must have some basis for his claim; therefore, Defendant must provide the facts and/or witnesses that support such a sweeping statement. Defendant's Answer merely restates the statement cited in Interrogatory No. 15 and does not in any way provide any facts and/or witnesses which support Defendant's contention. 40. Defendant's Answer to Interrogatory No. 15 is clearly nonresponsive and deficient. 41. Plaintiff's Interrogatory No. 16 states, "In your "First Affirmative Defense" included in your Answer you state, "The Complaint fails as the entire case is set up on the status of this Defendant as if a VAR when the real status is that of a partner in particular and qua Servolift." Identify each fact which you claim supports this contention. A complete answer will 8 include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation." 42. Defendant's Answer to Interrogatory No. 16 was, "Defendant received a letter from Treff LaPlante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff LaPlante, Express Dynamics and or Work Express and is ri,htful ly entitled to all monies agreed to in the revenue sharing agreement." 43. Defendant's Answer to Interrogatory No. 16 is nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant identify facts and/or witnesses with information regarding his claim that Defendant was a partner in particular. Instead, Defendant responds by quoting a passage from a letter from Treff LaPlante of WorkXpress and again stating that he was under no obligation to alter the agreement with Plaintiff. 44. Again, Defendant does not address the specific information requested in the Interrogatory and instead provides an Answer which merely reiterates Defendant's position in this case but does not provide any facts or witnesses specifically regarding Defendant's contention that he was a partner in particular. 45. This Answer to Interrogatory No. 16 is completely nonresponsive and deficient. 46. Plaintiff's Interrogatory No. 17 states, "hl your "Second Affirmative Defense" to Plaintiff's Complaint you state, "The Plaintiff's claims are barred in whole or in part by virtue of the Statue [sic] of Frauds." Identify each fact that supports this contention. A complete answer 9 Will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation." 47. Defendant's Answer to Interrogatory No. 17 was, "Defendant alleges that the Plaintiff has acted wrongly and committed "fraud" as demonstrated in Plaintiff's own letter to Defendant dated August 24, 2009 that states in part: "As stated in previous communications, your status as a partner of WorkXpress has been suspended since the end of March, due entirely to your lack of response regarding the type of partner you were electing to continue forward as. As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, We fell it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Plaintiff's own words prove that they want to transition the Defendant into an agency or value added reseller status." 48. Defendant's Answer to Interrogatory No. 17 is nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant identify facts and/or witnesses with information regarding his claim that the action is barred by the Statute of Frauds. Clearly, Defendant either does not understand the legal doctrine of the Statute of Frauds or is purposely misunderstanding the doctrine as he instead bases his answer on a supposed "fraud" that was perpetrated by Plaintiff. 49. Regardless of the reason for Defendant's misunderstanding, Defendant's Answer is not responsiv, to the Interrogatory regarding his claim that the Statute of Frauds bars Plaintiff's claim. Nothing in the Answer relates to the Statute of Frauds in any manner. 50. This Answer to Interrogatory No. 17 is completely nonresponsive and deficient. 10 51. Plaintiff's Interrogatory No. 23 states, "in your Answer to Plaintiff s Complaint, you assert WorkXpress did not have the right, power or authority to change the terms of the Agreement. With respect to such allegation, identify each fact that supports this allegation, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the information contained in said a.llegation." 52. Defendant's Answer to Interrogatory No. 23 was, "Defendant received a letter from Treff LaPlante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we fell it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agrecrnent between Defendant and Treff LaPlante, Express Dynamics and or Work Express." 53. Defendant's Answer to Interrogatory No. 23 is completely nonresponsive and deficient. Interrogatory No. 23 requests that Defendant support his contention that Plaintiff had no right to change the tenns of the agreement. In order to make such a contention, Defendant must have some basis for his claim; therefore, Defendant must provide the facts and/or witnesses that support such a sweeping statement. 54. Instead, Defendant provides a completely nonresponsive Answer which cites a sentence frorn a letter and his position that he was under no obligation to change the agreement. Defendant in no way addresses or answers the specific information requested in this Interrogatory - namely, Defendant's support for his assertion that Plaintiff had no authority to change the oral agreement. 55. Defendant's Answer to Interrogatory No. 23 is clearly nonresponsive and deficient. 56. Plaintiff's Interrogatory No. 24 states, "Do you contend that your agreement with WorkXpress could never be terminated?" 57. Defendant's Answer to Interrogatory No. 24 was, "Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the foregoing our defense is: One, the proper venue for this case is Morris County, New Jersey. Two, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them. Three, our agreement has an end date." 58. Defendant's Answer to Interrogatory No. 24 is completely nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant state whether he contends that his agreement with Plaintiff could never be terminated. Defendant's objections are unreasonable in that the interrogatory clearly is calculated to lead to the discovery of admissible evidence in that the core of the case revolves around the oral agreement and the termination of said agreement. 59. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding Defendant's contentions regarding the termination of the oral agreement with Plaintiff. Additionally, the information that Defendant does provide after his objections is not in any way responsive to Plaintiff's Interrogatory. Plaintiff requested the facts and/or witnesses that support Defendant's contention regarding the termination of the oral agreement. Defendant instead merely stated that venue was improper and that Plaintiff had no right to cancel the agreement. Defendant then asserts that the agreement has an end date but it is unclear as to whether Defendant is contending that the agreement could or could not be terminated. 60. This Answer to Interrogatory No. 24 is completely nonresponsive. 12 61. Plaintiff's Interrogatory No. 26 states, "In your Answer to Plaintiff's Complaint, you deny that the oral agreement between WorkXpress and Defendant is tenninable at will. Identify each fact supporting your contention. identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the information contained in said allegation." 62. Defendant's Answer to Interrogatory No. 26 was, "Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the foregoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton, New Jersey 07005. Neither Treff LaPlante, Express Dynamics or WorkXpress has any right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and for anyone to think that son ieone would agree to such a stipulation in an oral agreement is absurd. The agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date." 63. Defendant's Answer to Interrogatory No. 26 is completely nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant identify facts and/or witnesses that support his contention that his agreement with Plaintiff was not terminable at will. Defendant's objections are unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that the core of the case revolves around the oral agreement and the termination of said agreement. 64. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding Defendant's contentions regarding the termination of the oral agreement with Plaintiff. Additionally, the information that Defendant does provide after his objections is not in anyway responsive to Plaintiff's Interrogatory. Plaintiff requested Defendant's facts and/or 13 witnesses supporting his contentions regarding the termination of the oral agreement. Defendant instead merely stated that venue was improper and that Plaintiff had no right: to cancel the agreement. Defendant then asserts that the agreement has an end date but fails to provide any facts and/or witnesses to support his contention that the oral agreement was not terminable at NO 11. 65. This Answer to Interrogatory No. 26 is completely nonresponsive and deficient. 66. It is clear from reviewing the above-cited Answers to Plaintiff's First Set of Interrogatories that the Answers are nonresponsive and deficient for the reasons stated above. 67. Plaintiff sent Defendant a letter on August 20, 2010, explaining the reasons discussed above as to why Defendant's Answers to Interrogatories are nonresponsive and deficient. The letter is dated August 19, 2010, due to the fact that Plaintiff s counsel intended to hand deliver the letter to Defendant at the August 19, 2010 hearing, at which hearing Defendant failed to appear. A true and correct copy of the August 19t", 2010 letter sent to Defendant is attached hereto as Exhibit "A." 68. Further, Defendant's letter dated August 23, 2010, admits that "you make some valid points concerning our deficiencies" and yet Defendant has still refused to supplement his answers. A true and correct copy of the August 23, 2010 letter sent to Plaintiff is attached hereto as Exhibit "B." 69. Plaintiff's counsel certifies pursuant to Local Rule 208.2(d) that reasonable efforts have been made to contact Defendant and to request that he supplement his responses to Interrogatories and Requests for Production of Documents and the rescheduling of his deposition without further involvement of this Court but Defendant has failed to respond with supplemental answers. 14 70. Plaintiff is prejudiced by Defendant's willful disregard of the discovery rules as Plaintiff is unable to move forward with additional discovery necessary to prepare its case. 71. This Honorable Court, pursuant to Pa. R. Civ. P. 4019, has the authority and discretion to compel a party to supplement and respond to written discovery requests and to attend a deposition. 72. The appropriate remedy for failure to properly respond to discovery requests is for this Honorable Court to grant Plaintiff's Motion to compel Defendant to serve supplemental answers and responses to Plaintiff's discovery requests (all objections having been waived) and to compel Defendant to attend a scheduled deposition. WHEREFORE, Plaintiff, Express Dynamics, LLC d/b/a WorkXpress, respectfully requests that this Honorable Court enter an Order directing Defendant, Raymond Spellman, to serve complete and substantive and responsive answer to Plaintiffs discovery within ten (10) days and to attend and cooperate during the rescheduled deposition to be held within twenty (20) days. Respectfully submitted, RHOADS & SINON LLP By: Robe . eck Attorney I.D. No. 74486 Kevin M. Gold Attorney I.D. No. 70265 Kelly H. Decker Attorney I.D. No. 84886 One South Market Square P. O. Box 1 146 Harrisburg, PA 17108-1146 (717) 233-5731 Attor-17evs for Plaintiff Express 15 Dynamics, LLC cl/h/a WorkXpress 16 CERTIFICATE OF SERVICE I hereby certify that on this 13t11 day of September, 2010, a true and correct copy of the foregoing "Plaintiff's Supplemental Motion to Compel Defendant Raymond Spellman's Answers to Interrogatories and Requests for Production of Documents and Deposition Pursuant to Pa. R. Civ. P. 4019" was served by means of United States mail, first class, postage prepaid, upon the following: Raymond Spellman 327 Morris Avenue Boonton, New.iersey 07005 f AA AQA I EXHIBIT "A" WP 1 69 1 " ? L? COPY Kelly H. Decker Ph (%17) 237-6-35 jr l%17) 238 81123 RHOAD S & SINON LLP kdecker,:i<rhoads-sinon com FILE N0: S4393 August 19, 2010 Re: Express Dvnamics, LLC d/b/a WorkXpress v. Raymond Spellman; Cumberland Countv Court of Common Pleas Docket No. 10-1041 Mr. Raymond Spellman 327 Moms .Avenue Boonton, N.1 07005 Dear Mr. Spellman: Via Hand Deliverv This :letter serves to address the deficiencies in Defendant Raymond Spellman's ("Spellman" or "Defendant") discovery responses and the sufficiency of Plaintiff Express Dyanamics, LLC d/b/a WorkXpress' ("WorkXpress") discovery responses. Each subject is addressed in turn below. 1. Deficiencv of Your Responses to Plaintiffs First Set of Interrogatories and Requests for Production of Documents First with respect to your discovery responses, on May 28, 2010, WorkXpress filed a Motion to Compel Defendant's Answers to Interrogatories and Requests for Production of Documents. On June 2, 2010, the Court issued a Rule to Show Cause stating that you had twenty (20) clays within which to file an answer to the motion and that an argument would be heard on the matter on July 8, 2010. Defendant did not file an answer to the Motion. The day before the hearing was to be held, on July 7, 2010, we received your untimely Answers to Interrogatories and Requests for Production of Documents. Based on the receipt of those answers and '.he time constraints on reviewing those answers prior to argument the following day, the Court continued the argument on Plaintiffs Motion to Compel until Thursday, August 19, 2010. Reviewing your Answers to Interrogatories and Requests for Production of Documents, it is clear that your answers are legally deficient and must be supplemented under the applicable Rules of Court. Under Pa. R. Civ. P. 4019(a)(1), the court may make an appropriate order if a party fails to serve sufficient answers. Discussed below are the specific interrogatories. and your responses to those interrogatories that we believe are deficient under the rules of court. 2. Identify each person who has knowledge of facts concerning the issues raised in. 71001> 1 One South Market Square, 12th Floor e P.O. Box 1146 e Harrisburg, PA 17108-1146 e ph: 717.233.5731 1»tc?u rhnnrfc-ciri?irr rnrv August 19. 20 } 0 Palle 2 P'laintiff's Complaint and Defendant's Answer and with respect to each person so identified, state the facts of which they have knowledge. YOUR ANSWER: Defendant alleges that the following people have knowledge of e) 6 the issues: Julie Spellman, Thomas Lertola and Treff LaPlante. The answer to Interrogatory No. 2 is deficient in that while it does answer the first part of the Interrogatory regarding the identity of people with knowledge of the facts concerning the issues in this case, Defendant fails to address in any way the second part of the Interrogatory regarding the facts of which those named individuals have knowledge. This is information that is reasonably calculated to lead to the discovery of admissible evidence and must be answered by Defendant. 10. In your Answer to the Complaint, you specifically deny that you were a VAR for WorkXpress. State or describe how you characterize your relationship with 1?lorkXpress from 2006 -2009 and identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton, New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenues from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date. Defendant's Answer to Interrogatory No. 10 is nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant describe his relationship with WorkXpress from 2006-2009. Defendant's objections are unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that Defendant's position with WorkXpress is clearly a significant matter in this case. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding Defendant's beliefs regarding his relationship with WorkXpress during the course of his employment. Additionally, the information that Defendant does provide after his objections is not in any way responsive to Plaintiffs Interrogatory. Plainti ff requested Defendant's characterization of his relationship with WorkXpress during 2006-2009. Defendant merely stated that venue was improper and that Plaintiff had no right to cancel the agreement. This Answer to Interrogatory No. 10 is completely nonresponsive and deficient. 11. Identify the specific services that you provided to customers, such as Servolift; pLrrsuant to your oral agreement with Workkpress. August 19, '010 Pa0e 3 YOUR ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome and seek information that is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton, New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date. Defendant's Answer to Interrogatory No. 11 is equally as nonresponsive as the Answer to Interrogatory No. 10. Plaintiff specifically requests that Defendant describe the services that he provided to customers pursuant to the oral agreement with WorkXpress. As discussed in the analysis above regarding Defendant's Answer to Interrogatory No. 10, Defendant's objections are unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that Defendant's services to WorkXpress's customers are clearly a significant matter in this case. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding Defendant's services to WorkXpress's customers during the length of the oral agreement. Additionally, the information that Defendant does provide after his objection, is not in any way responsive to Plaintiff's Interrogatory. Defendant merely stated that. venue was improper and that Plaintiff had no right to cancel the agreement. Defendant does not in any way address the services that he purportedly provided to customers. This Answer to Interrogatory No. 11 Is completely nonresponsive and deficient. i 13. In'?17 of your Answer you state, in part, "VAR or Agency' Agreements are irrelevant as it concerns Servolift." With respect to this allegation, identify each fact or circumstance that supports this contention, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to., or in any way pertains to the information contained in said allegation. YOUR, ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the foregoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton, New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date. Further, Defendant received a letter from Treff LaPlante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing August 19, ? 01 0 Page 4 agreement between Defendant and Treff LaPlante, Express Dynamics and or Work Express. Defendant's Answer to Interrogatory No. 13 is completely nonresponsive as well. Plaintiff specifically requests that Defendant identify facts and witnesses supporting his contention that VARR'Agencv Agreements are irrelevant as they concern Servolift. As discussed in the analysis above regarding Defendant's Answers to Interrogatories Nos. 10 and 11, Defendant's objections are unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that the oral agreement as it pertains to Servolift is clearly a significant matter in this case. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding the oral agreement at issue in this case. Additionally, the information that Defendant does provide after his objections is not in any way responsive to Plaintiff's Interrogatory. Defendant merely stated that venue was improper and that Plaintiff had no right to cancel the agreement.. Defendant does not in any way address the services that he purportedly provided to customers. The rest of the Answer to Interrogatory No. 13 simply argues that "Defendant has no obligation" to alter his arrangement with Plaintiff but again, Defendant fails to in any way address the actual information requested in the Interrogatory. This Answer to Interrogatory No. 13 is completely nonresponsi,,- e and deficient. 14. In ¶ 19 of your Answer you state, in part, "Express Dynamics. ..w-as unaware of the New Jersey based Servolift or Lertola and had no prior knowledge of their existence and no prior relationship with Servolift or their employees or their agents." Identify each fact which you claim supports this contention. A complete answer wil.1 'Include th° identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Interrogatory 14 requires no further clarification. Defendant's Answer to Interrogatory No. 14 is completely nonresponsive and deficient. In fact, the Answer is so deficient that it is as if Defendant had merely left this Answer blank. Defendant has an obligation to answer these Interrogatories. Interrogatory No. 14 merely requests that Defendant: support his contention that Plaintiff was unaware of Servolift or Lertola until Defendant became involved with Plaintiff In order to make such a contention, Defendant must have some basis for his claim; therefore,' Defendant must provide the facts andior witnesses that support such a sweeping statement. Defendant's Answer to Interrogatory No. 14 is clearly nonresponsive and deficient. 15. In '[119 of your Answer you state, in part, "Defendant never gave Plaintiff any right to terminate the agreement and Defendant is lawfully entitled to all funds rightfully ea ;red and due from Servolift." Identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. August 19, '010 Pa,ze YOUR ANSWER: Interrogatory 15 required no further clarification. Neither Treff LaPlante, Express Dynamics or WorkXpress has any right or authority to unilaterally cancel the revenue sharing agreement and keep all of the revenue from the Servolift contract for them. Defendant's Answer to Interrogatory No. 15 is completely nonresponsive and deficient. Interrogatory No. 15 merely requests that Defendant support his contention that Plaintiff had no right to terminate the agreement and that Defendant was entitled to continue receiving funds from Sergi oli ft. In order to make such a contention, Defendant must have some basis for his claim; therefore, Defendant must provide the facts and/or witnesses that support such a sweeping statement. Defendant's Answer merely restates the statement cited in Interrogatory No. 15 and does not in any way provide any facts and/or witnesses which support Defendant's contention. Defendant's Answer to Interrogatory No. 151s clearly nonresponsive and deficient. 16. In your "First Affirmative Defense" included in your Answer you state, "The Complaint fails as the entire case is set up on the status of this Defendant as if a VAR when the real status is that of a partner in particular and qua Servolift." Identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Defendant received a letter from Treff LaPlante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff LaPlante, Express Dynamics and or Work Express and is rightfully entitled to all monies agreed to in the revenue sharing agreement. Defendant's Answer to Interrogatory No. 16 is nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant identify facts and/or witnesses with information regarding his claim that Defendant was a partner in particular. Instead, Defendant responds by quoting a passage from a letter from Treff LaPlante of WorkXpress and again stating that he was under no obligation to alter the agreement with Plaintiff. Again, Defendant does not address the specific information requested in the Interrogatory and instead provides an Answer which merely reiterates Defendant's position in this case but does not provide any facts or witnesses specifi y call regarding Defendant's contention that he was a partner in particular. This Answer to Interrogatory No. 16 is completely nonresponsive and deficient. 17. In your "Second Affirmative Defense" to Plaintiffs Complaint you state, "The Plaintiff's claims are barred in whole or in part by virtue of the Statue [sic] of Frauds." Identify each fact that supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and AULILISt 19. 2010 Page 0 each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Defendant alleges that the Plaintiff has acted wrongly and committed "fraud" as demonstrated in Plaintiff's own letter to Defendant dated August 24, 2009 that states in part: "As stated in previous communications, your status as a partner of WorkXpress has been suspended since the end of March, due entirely to your lack of response regarding the type of partner you were electing to continue forward as. As you know, our prior agreement established few if any precise teryns and conditions for the relationship, and as such, we fell it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Plaintiffs own words prove that they want to transition the Defendant into an agency or value added reseller status. Defendant's Answer to Interrogatory No. 17 is nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant identify facts and/or witnesses with information regarding his claim that the action is barred by the Statute of Frauds. Clearly, Defendant either does not understand the legal doctrine of the Statute of Frauds or is purposely misunderstanding the doctrine as he instead bases his answer on a supposed "fraud" that was perpetrated by Plaintiff. Regardless of the reason for Defendant's misunderstanding, Defendant's Answer is not responsive to the Interrogatory regarding his claim that the Statute of Frauds bars Plaintiff's claim. Nothing in the Answer relates to the Statute of Frauds in any manner. This Answer to Interrogatory No. 17 is completely nonresponsive and deficient. 23. In your Answer to Plaintiff's Complaint, you assert WorkXpress did not have the right, power or authority to change the terms of the Agreement. With respect to such allegation, identify each fact that supports this allegation, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Defendant received a letter from Treff LaPlante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we fell it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff LaPlante, Express Dynamics and or Work Express. Defendant's Answer to Interrogatory No. 23 is completely nonresponsive and deficient. Interrogatory No. 23 requests that Defendant support his contention that Plaintiff had no right to change the terms of the agreement. In order to make such a contention, Defendant must have some basis for his claim; therefore, Defendant must provide the facts and/or witnesses that support such a sweeping statement. Instead, Defendant provides a completely nonresponsive Answer which cites a sentence from a letter and his position that he was under no obligation to change the agreement. Defendant in no wvay addresses or answers the specific information requested in this Interrogatory -- AULIL1St 19. 20 10 Palle namely. Defendant's support for his assertion that Plaintiff had no authority to change the oral agreement. .Defendant's Answer to Interrogatory No. 23 is clearly nonresponsive and deficient. 24. Do you contend that your agreement with WorkXpress could never be terminated? N`OLJR ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the foregoing our defense is: One, the proper venue for this case is Morris County, New Jersey. Two, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all bf the revenue from the Servolift contract for them. Three, our agreement has an end date. Defendant's Answer to Interrogatory No. 24 is completely nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant state whether he contends that his agreement with Plaintiff could never be terminated. Defendant's objections are unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that the core of the case revolves around the oral agreement and the termination of said agreement. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding Defendant's contentions regarding the termination of the oral agreement with Plaintiff. Additionally, the information that Defendant does provide after his objections is not in any way responsive to Plaintiffs Interrogatory. Plaintiff requested the facts and/or witnesses that support Defendant's contention regarding the termination of the oral agreement. Defendant instead merely stated that venue was improper and that Plaintiff had no right to cancel the agreement. Defendant then asserts that the agreement has an end date but it is unclear as to whether Defendant is contending that the agreement could or could not be terminated. This Answer to Interrogatory No. 24 is completely nonresponsive. 26. In your Answer to Plaintiff's Complaint, you deny that the oral agreement between WorkXpress and Defendant is terminable at will. Identify each fact supporting your contention, identify each witness with knowledge relative to this contention., and identify each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOL-",R ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the foregoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton, New Jersey 07005. Neither Treff LaPlante, Express Dynamics or WorkXpress has any right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and for anyone to think that someone would agree to such a stipulation in an oral agreement is absurd. The agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date. Defendant's Answer to Interrogatory No. 26 is completely nonresponsive as to the information requested in the Interro-atory. Plaintiff specifically requests that Defendant identi fy August 1 9. 201 Pave 8 facts and/or witnesses that support his contention that his agreement with Plaintiff was not terminable al will. Defendant's objections are unreasonable in that the hlterrOgatorv clearly is calculated to lead to the discovery of admissible evidence in that the core of the case revolves around the oral agreement and the termination of said agreement. Further, the Inte:YOgatory is neither vague nor- ambiguous and clearly requests information regarding Defendant's contentions regarding the termination of the oral agreement with Plaintiff. Additionally, the information that Defendant does provide after his objections is not in any way responsive to Plaintiff's Interrogatory. Plaintiff requested Defendant's facts and/or witnesses supporting his contentions regarding the termination of the oral agreement. Defendant instead merely stated that venue was improper and that Plaintiff had no right to cancel the agreement. Defendant then asserts that the agreement has an end date but -ails to pr?vide any facts and/or witnesses to support his contention that the oral agreement was not terminable at will. This Answer to Interrogatory No. 26 is completely nonresponsive and deficient. Therefore, after reviewing your Answers to Plaintiffs First Set of Interrogatories, it is clear that the above-cited Answers are nonresponsive and deficient for the reasons stated above. Your failure to address these. Answers and appropriate amend the Answers with responsive statements will result in a request for the Court to compel said answers. II. Your Motion to Compel Plaintiff's Answers to Defendant's First Set of Interrogatories On August 5, 2010, you filed a Motion to Compel Plaintiff's Answers to Interrogatories. The Court has not yet issued a Rule to Show Cause requiring a response from Plaintiff or setting this matter for a hearing. However, in the interest of resolving this matter and to avoid the necessity of a hearing on this motion, I provide you with the following information. I have reviewed our own responses to Defendant's First Set of Interrogatories. Discussed below are the reasons why the objections and answers that you indicated in your Motion to Compel as deficient or nonresponsive are in fact responsive and permitted under the rules of court. 14. State whether any agreement or agreements, written or oral, were made between the Plaintiff and Defendant. Provide an exact description of such agreements which includes: (a) what parties, entities, persons or companies where (sic) involved in the agreements; (b) the time, date, and place the agreements took place and who was present; (c) every term and condition of the agreements; (d) the responsibilities of all parties, entities, persons or companies involved in the agreements; (e) how revenues were to be shared amongst the parties, entities, persons or companies involved in the agreements; and (f) attach any copies of such agreements. PLAINTIFF'S ANSWER: In 2006, Plaintiff and Defendant entered into an oral AUuttst 19. 2010 Page 9 agreement whereby Defendant would provide maintenance of the customer relationship and customer support to the end-user of WorkXpress software. In exchange, Defendant received a 40% commission. The oral agreement was not for any specified period of time. Termination of the agreement by either party was not subject to any conditions. While the Answer to Interrogatory No. 14 was not specifically broken into subparts per the Interrogatorv, this Answer is responsive and addresses the information requested in each subpart. In response to subpart (a), Plaintiff and Defendant were involved in the agreement. In response to s.rbpart (b), the agreement was entered into sometime in 2006 with Plaintiff and Defendant present. In response to subparts (c) and (d), the terms, conditions, and responsibilities of the agreement were that Defendant would provide maintenance of the customer relationship and customer support to the end-user and in exchange would receive a 401"o commission. Further, the oral agreement was not for a specific period of time and termination of the agreement by either party was not subject to any conditions per the oral agreement. In response to subpart (e), revenues were shared by paying Defendant a 40% commission. Since the agreement was oral, there is no copy of such agreement in regard to subpart (f). You state in your Motion to Compel that the following responses to interrogatories are not sufficient according to your requirements and that Plaintiff must be compelled to provide information requested from Defendant. Pa. R. Civ. P. 4006(a)(2) clearly states that, "Each interrogatory shall be answered fully and completely unless objected to, in which event the reasons for the objection shall be stated in lieu of an answer." In some circumstances, even upon an objection. Plaintiff has also provided an answer to the interrogatory. In Interrogatories Nos. 3 through 6 and No. 10, cited below, the objections are clearly sufficient and responsive in that the information requested in these Interrogatories is overly broad and exceeds the scope of the relevant time period. which began when the relationship between Defendant and Plaintiff formed in 2006. Further, this information is not relevant to the present action in that any claims of a breach of contract between Plaintiff and other employees does not involve Defendant and involves a separate and distinct agreement which is not at issue here and is irrelevant to the current action. Accordingly, the same rationale is applicable to Interrogatory No. 6 because any other legal proceeding with the Plaintiff as a party is irrelevant to the current action and to the matter at hand regarding the relationship between Plaintiff and Defendant. The only relevant matter is the agreement that existed between Plaintiff and Defendant and claims of breach of contract by other individuals against Plaintiff are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing, Plaintiff will supplement d, is answer to inform you that Plaintiff has never been involved in a lawsuit, whether a Plaintiff or defendant. August 19. 2010 Page 10 3. Please state whether within the last ten years any person has claimed that ,you breached n, contract. PLAINTIFF'S A.NSU'ER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. 4. If your answer to Interrogatory No. 3 was yes, please identify the person who advanced such claim. PLAINTIFF'S ANSWER: See answer to interrogatory no. 3. If your answer to Interrogatory No. 3 was yes, please describe the means by which such claim was advanced. PLA.INTIFF'S ANSWER: See answer to interrogatory no. 3. 6. Please state whether within the last ten years any person commenced a legal proceeding claiming that you breached any contract. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. 10. List and attach to the Answers to these Interrogatories true copies of federal., state, and local tax returns from 2002 to 2010 for Treff LaPlante, Express Dynamics and M,'orkXpress. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope. In addtion to the reasons presented above, Interrogatory No. 10 also does not require any further response because it requests information that is completely irrelevant to the current cause of action and is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff's tax returns can provide no information regarding the terms of an agreement between Plaintiff and Defendant in this declaratory* Ldurnent action. Based On similar grounds as stated above, the following Answers to Interrogatories that Defendant cites in his Motion to Compel are also proper under the rules of court and are responsive as required by the rules of court. The following Interrogatories request proprietary and confidential information that is completely irrelevant to the facts at issue in this case and is August 19, '010 Pave l 1 information which is not reasonably calculated to lead to the discovery of admissible evidence. The contact information for all persons involved in the development of Plaintiff's software, the sales and marketing of the software, and any VAR, agent, or partner of the software is irrelevant and requests the personal information of individuals who have absolutely no information in regard to this specific matter and who expect their personal information to remain confidential. Further, the Interrogatories request information that precedes the scope of the current action, since the relationship between Plaintiff and Defendant did not form until 2006. Interrogatories Nos. 11 through 13 request information from 2002, well before the relevant time period. Further, no information prior to the formation of the date of the agreement between Plaintiff and Defendant has any bearing or relevancy in this case since the agreement at. issue did not form until 2006. Additionally, when appropriate, Plaintiff did list the relevant individuals in Interrogatories Nos. 11 and 12. 11. List and attach to the Answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email addresses of any person, employee, company or entity that was utilized in the development of Plaintiff's software from 2002 to 2010 and state: (a) the dates, times and location of where each person or company worked; (b) the type of work the person or company performed; (c) how the person or company was compensated; (d) the amount paid or bartered as compensation; (e) the form of payment or barter: (f) when payment was made; (g) complete educational and technical background; and (h) whether the person, employee, company or entity is still employed or provides service and if not why they no longer are employed or provide services. PLAP.VTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Moreover, Plaintiff objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. Notwithstanding the foregoing and with full reservation of rights, Plaintiff lists the following employees, who may be contacted through the undersigned counsel.. Drew ?McLain (lead developer) Brian Bransteitter (senior developer) James Armes (senior developer) August 19, -:010 Page 12 12. List and attach to the Answers to these Interrogatories true copies of all of the names, addresses, phone numbers, and email addresses of any person, employee, company or entity that was utilized in the sales and"or marketing of Plaintiff's software from 2002 to 2010 and state: (a) the dates, times and location of where each person or company worked; (b) the type of work the person or company performed; (c) how the person or company was compensated; (d) the amount paid or bartered as compensation; (e) the farm of payment or barter: (f) when payment was made; and (g) complete educational and technical background. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Plaintiff objects to this interrogatory on the basis that the information requested consists of information that is proprietary and confidential in nature. Notwithstanding the foregoing, and with full reservation of rights, Plaintiff identifies the following individuals who currently conduct sales and/or marketing activities for WorkXpress and who may be contacted through the undersigned counsel. Treff LaPlante (Sales Team Leader) Jacob Burns (Marketing) 13. List and attach to the Answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email addresses or any person, company or entity that is or was classified as a VAR, Agent or Partner of Plaintiff's software from 2002 to 2010 and state: (a) the dates, times and location of where each person or company worked; (b) the type of work the person or company performed; (c) how the person or company was compensated; (d) the amount paid or bartered as compensation; (e) the form of payment or barter: and (f) when payment was made. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Plaintiff further objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. Finally, in regard to the last of the Interrogatories that Defendant lists as nonresponsive or deficient, the Interrogatory that Defendant cites is actually No. 16, not No. 15. This response to Interrogatory No. 16 is responsive and appropriate in that, again, the request is not reasonable in August 19, _:01O Pave 13 time and scope because the Interrogatory sets no perimeters in regard to the date. Further, this request is incredibly broad and requests irrelevant information since all other VAR or Agent agreements are irrelevant to this case. The only relevant agreement is the agreement that was in place between Defendant and Plaintiff. Any information gleaned from the agreements between Plaintiff and other VARs or Agents is not reasonably calculated to lead to the discovery of admissible evidence because those agreements have absolutely no role in regard to the terms and conditions of the agreement in place between Plaintiff and Defendant. 16. State the exact dates that all verbal and written VAR or Agent agreements ratified by Treff LaPlante, Express Dynamics and/or WorkXpress were ratified. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory as vague, ambiguous, and unintelligible and on the ground that it is overlybroad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Plaintiff further objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. Therefore, all of the Objections and Answers to Interrogatories which Defendant claims in his Motion to Compel are nonresponsive or deficient are in fact in compliance with the rules of court and have been properly answered and/or objected to in regard to each particular Interrogatory. Rescheduling Your Deposition Furthermore, concerning your deposition that was to have occurred in May of this year, we would like to reschedule your deposition for one of the following dates in September 2010: September 14, 21, 22, 23, 24, 29, or 30th, or one of the following dates in October 2010: October 5, 6, or 7th. Please respond to us with the dates of those listed that are convenient for you by Tuesday, August 31, 2010, or we will choose one of those dates and will make the appropriate arrangements for your deposition here at our offices in Harrisburg, Pennsylvania. Plaintiffs Answers to Defendant's Second Set of Interrogatories On or about July 6, 2010, Defendant served a second set of interrogatories on Plaintiff. On August 10. 2010.. the undersigned sent correspondence to you requesting a two week extension, uni. I August 24`" to complete answers to said interrogatories. We will respond to Defendant's second set of interrogatories by August 24`''. Au?zust 19. 2010 Palle 14 If you have any questions, please feel free to contact tine. Thank you. Very truly yours, RHOADS & SINON LLP i By: Kelly H.? U ck.er cc: Treff LaPlante (via email) KJ-ID/kas EXHIBIT "B" 690169.1 r , Raymond Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 August 23, 2010 Kelly H. Decker Rhoads & Sinon LLP Twelfth Floor One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 Re: Express Dynamics, LLC d/b/a WorkXpress v. Raymond Spellman Cumberland County CCCP, No. 10-1041 Dear Ms. Decker: I am in receipt of your letters dated August 19, 2010 and August 20, 2010. Although you make some valid points concerning our deficiencies I disagree with your explanations or defenses on most of Plaintiff's interrogatory responses. If' you are unwilling to provide greater detail and answer the interrogatory questions, per court rule, I will simply move forward with our motion. Under Pa. R. Civ. P. 4003.1 (a) ... a party may obtain discovery regarding any matter, not privileged, which, is relevant to the subject matter involved in the pending action... and (b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. I believe that the information sought is reasonably calculated to lead to the discovery of admissible evidence and I have been advised to continue to seek this evidence as it is permissible under Pennsylvania Code. Further, with all due respect, I do not wish to be contacted Via Facsimile or email as it is disruptive to my business. I see no reason why there should be "emergent correspondence." You sent a letter to the Honorable Kevin A. Hess on July 7, 2010 requesting "the opportunity to determine whether defendant has appropriately responded to written discovery..." it would be reasonable to expect that Rhoads & Sinon would have reviewed and responded to the written discovery within 7 to 10 days. The "emergent correspondence" was necessary because it took your firm six (6) V weeks to review and respond. In addition, your firm missed the filing date to respond to Defendant's Second Set of Interrogatories. The "emergent correspondence" was required because of lack of execution on the part of Rhoads & Sinon and not some unforeseen circumstance. As you are aware I reside some 180 miles away from the Cumberland County Courthouse and it would appear reasonable that your firm and your client would make every accommodation to provide notice well in advance of scheduled events as these trips would require an overnight stay. It is a common courtesy I would afford to you. Concerning the taking of my deposition I am not available during your proposed dates as I am booked solid for September and the first week of October. The first day I am available is Oct(,, bpx 8, 2010 at 9:00 AM at my office in Boonton, New Jersey. I have scheduled the date and look forward to seeing you here. Sincerely, YdSpellman Raym Robert J. Tribeck, Esquire Attorney I.D. No. 74486 Kevin M. Gold, Esquire Attorney I.D. No. 70265 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON UP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17 108-1146 (717) 233-5731 Attornetis for Express Dl namres, LLC M/b/a WorkXpress EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. RAYMOND SPELLMAN Defendant. CIVIL ACTION - LAW NO. 10-1041 PLAINTIFF EXPRESS DYNAMICS, LLC D/B/A WORKXPRESS'S ANSWER TO DEFENDANT'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES NOW COMES Plaintiff, Express Dynamics, LLC d/b/a WorkXpress ("Plaintiff"), by and through its attorneys, Rhoads & Sinon LLP, and files the within Answer to Defendant's Motion to Compel and avers as follows: Denied as stated. The correct corporate name of Plaintiff is Express Dynamics, LLC d/b/a Wo:rkXpress. 2. Admitted upon information and belief. 3. Denied as stated. Plaintiff and Defendant entered into an oral agreement whereby Defendant would provide services as a value added reseller ("VAR") and, while performing such services, would receive certain payments associated therewith. 4. Denied as stated. Plaintiff was aware of Servolift's existence. 1 ? 5. Denied in part, admitted in part. It is admitted that Plaintiff filed a Complaint for Declaratory Judgment against Defendant on February 9, 2010. The remaining allegations are conclusions of law which do not require a response. To the extent that this paragraph contains allegations which require a response, the same are specifically denied. By way of' further response, Plaintiff properly filed its Complaint according to the Pennsylvania and Cumberland County Rules of Civil Procedure. Plaintiff specifically denies any alleged malice or bad faith. 6. Denied. 7. Denied. This paragraph contains conclusions of law which do not require a response. By way of further response, to the extent that this paragraph contains factual averments, the same are specifically denied and strict proof thereof is demanded at the time of trial. 8. Admitted. 9. Admitted upon information and belief. 10. Denied. The allegations contained in this paragraph are completely irrelevant to considering the sufficiency of Plaintiffs Answers to Interrogatories and are not likely to lead to the discovery of admissible evidence. 11. Denied. The allegations contained in this paragraph are completely irrelevant to considering the sufficiency of Plaintiffs Answers to Interrogatories and are not likely to lead to the discovery of admissible evidence. This paragraph contains conclusions of law which do not require a response. By way of further response, to the extent that this paragraph contains factual averments, the same are specifically denied and strict proof thereof is demanded at the time of trial. 12, Denied. The allegations contained in this paragraph are completely irrelevant to considering the sufficiency of Plaintiff's Answers to Interrogatories and are not likely to lead to the discovery of admissible evidence. 13. Denied. The allegations contained in this paragraph are completely irrelevant in considering the sufficiency of Plaintiff's Answers to Interrogatories and are not likely to lead to the discovery of admissible evidence. By way of further response, Plaintiff's Answers are sufficient and responsive under the Pennsylvania and Cumberland County Rules of Civil Procedure. 14. Denied. The allegations contained in this paragraph are completely irrelevant in considering the sufficiency of Plaintiff's Answers to Interrogatories and are not likely to lead to the discovery of admissible evidence. By way of further response, Plaintiff's Answers are sufficient and responsive under the Pennsylvania and Cumberland County Rules of Civil Procedure. 15. Denied. This paragraph contains conclusions of law which do not require a response. To the extent that this paragraph contains factual averments, the same are specifically denied and strict proof thereof is demanded at the time of trial. By way of further response, Plaintiff has properly objected and answered Defendant's First Set of Interrogatories pursuant to the Pennsylvania and Cumberland County Rules of Civil Procedure. 16. Denied. 17. Denied. This paragraph contains conclusions of law which do not require a response. By way of further response, to the extent that this paragraph contains factual averments, the same are specifically denied and strict proof thereof is demanded at the time of 3 trial. By way of further response, Plaintiff's Answers are sufficient and responsive under the Pennsylvania and Cumberland County Rules of Civil Procedure. 18. Admitted that Defend'ant's Interrogatory No. 18 and its subparts are stated in this paragraph. 19. Admitted. Such a response is entirely appropriate and permitted under the Pennsylvania and Cumberland County Rules of Civil Procedure. 20. Admitted. 21. Denied as stated. Admitted only that Defendant's Interrogatory No. 14 asks for the elements of the agreement. Defendant's First Set of Interrogatories is a document that speaks for itself and any characterization of the Interrogatories is hereby denied. 22. Admitted in part, denied in part. It is admitted that Plaintiff did not provide a copy of any such agreement because the agreement was oral. By way of further response, while the Answer to Interrogatory No. 14 was not specifically broken into subparts per the Interrogatory, this Answer is responsive under the Pennsylvania and Cumberland County Rules of Civil Procedure and addresses the information requested in each subpart. In response to subpart (a). Plaintiff and Defendant were involved in the agreement. In response to subpart (b), the agreement was entered into sometime in 2006 with Plaintiff and Defendant present. In response to subparts (c) and (d), the terms, conditions, and responsibilities of the agreement were that Defendant would provide maintenance of the customer relationship and customer support to the end-user and in exchange would receive a 40% commission. Further, the oral agreement was not for a specific period of time and termination of the agreement by either party was not subject to any conditions per the oral agreement. In response to subpart (e), revenues were shared by 4 paying Defendant a 40% commission. Since the agreement was oral, there is no copy of such agreement in regard to subpart (f).t 23. Denied as stated. Pennsylvania Rule of Civil Procedure 4003.1 states in part that "a party may obtain discovery regarding any matter, nor privileged, which is relevant to the subject matter involved in the pending action. . . ." By way of further response, Plaintiff's obligation under the Pennsylvania Rules of Civil Procedure is to answer each interrogatory fully and completely "unless objected to, in which event the reasons for the objection shall be stated in lieu of an answer." Pa. R. Civ. P. 4006. Additionally, under C.C.R.P. 4005-1, interrogatories "shall not exceed forty (40) in number," including subdivisions which are construed as separate interrogatories. Therefore, Plaintiff has properly answered Defendant's Interrogatories. 24. Denied. This paragraph contains conclusions of law which do not require a response. To the extent that this paragraph contains factual averments, the same are specifically denied and strict proof thereof is demanded at the time of trial. It is specifically denied that Plaintiff has engaged in any pattern of deceit, bad faith, or dishonest dealings and strict proof of such is demanded at the time of trial. By way of further response, Plaintiff is unable to speak to Defendant's beliefs. 25. Admitted in part, denied in part. It is admitted that Defendant requested information from Plaintiff in Defendant's First Set of Interrogatories to Plaintiff. It is specifically denied that Plaintiff engaged in any type of pattern of deceit and strict proof thereof is demanded at the time of trial. a. Admitted. Further, each Answer to Interrogatory cited in Defendant's Motion to Compel was specifically analyzed, addressed, and discussed in a letter from Plaintiff to Defendant, dated August 19`'. 2010, and attached hereto as Exhibit "A." Plaintiff clearly stated why each Answer that Defendant now states is insufficient or nonresponsive is in fact appropriate and permitted under the Pennsylvania and Cumberland County Rules of Civil Procedure. 5 1 e b. Admitted. C. Admitted. d. Admitted. e. Admitted. f Admitted. g. Admitted. By way of further response, the final subsection of Interrogatory No. 12 is: (g) complete education and technical background. h. Admitted. i. Denied. The Interrogatory that Defendant cites is actually Interrogatory No. 16, not Interrogatory No. 15. 26. Admitted only that Plaintiff is the party requesting the Declaratory Judgment and that Plaintiff responded to Defendant's Interrogatories with objections and answers. a. Denied as stated. Plaintiff's actual responses to Interrogatories #3, 4, 5, 6, 10, 11, 12, 13, and 16 (the Interrogatory that is actually cited in Defendant's Motion) are as follows:'` 3. Please state whether within the last ten years any person has claimed that you breached any contract. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. 4. If your answer to Interrogatory No. 3 was yes, please identify the person who advanced such claim. PLAINTIFF'S ANSWER: See answer to interrogatory no. 3. See also Exhibit A for a discussion of Defendant's Interrogatories and Plaintiff s Answers. 6 5. If your answer to Interrogatory No. 3 was yes, please describe the means by which such claim was advanced. PLAINTIFF'S ANSWER: See answer to interrogatory no. 3. 6. Please state whether within the last ten years any person commenced a legal proceeding claiming that you breached any contract. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. 10. List and attach to the Answers to these Interrogatories true copies of federal, state, and local tax returns from 2002 to 2010 for Treff LaPlante, Express Dynamics and WorkXpress. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope. 11. List and attach to the Answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email addresses of any person, employee, company or entity that was utilized in the development of Plaintiff's software from 2002 to 2010 and state: (a) the dates, times and location of where each person or company worked; (b) the type of work the person or company performed; (c) how the person or company was compensated; (d) the amount paid or bartered as compensation; (e) the form of payment or barter: (f) when payment was made; (g) complete educational and technical background; and (h) whether the person, employee, company or entity is still employed or provides service and if not why they no longer are employed or provide services. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, 7 when Plaintiff and Defendant entered into an agreement. Moreover, Plaintiff objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. Notwithstanding the foregoing and with full reservation of rights, Plaintiff lists the following employees, who may be contacted through the undersigned counsel. Drew McLain (lead developer) Brian Bransteitter (senior developer) James Armes (senior developer) 12. List and attach to the Answers to these Interrogatories true copies of all of the names, addresses, phone numbers, and email addresses of any person, employee, company or entity that was utilized in the sales and/or marketing of Plaintiff's software from 2002 to 2010 and state: (a) the dates, times and location of where each person or company worked; (b) the type of work the person or company performed; (c) how the person or company was compensated; (d) the amount paid or bartered as compensation, (e) the form of payment or barter: (f) when payment was made; and (g) complete educational and technical background. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Plaintiff objects to this interrogatory on the basis that the information requested consists of information that is proprietary and confidential in nature. Notwithstanding the foregoing, and with full reservation of rights, Plaintiff identifies the following individuals who currently conduct sales and/or marketing activities for WorkXpress and who may be contacted through the undersigned counsel. Treff LaPlante (Sales Team Leader) Jacob Burns (Marketing) 8 13. List and attach to the Answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email addresses or any person, company or entity that is or was classified as a VAR, Agent or Partner of Plaintiff s software from 2002 to 2010 and state: (a) the dates, times and location of where each person or company worked; (b) the type of work the person or company performed; (c) how the person or company was compensated; (d) the amount paid or bartered as compensation; (e) the form of payment or barter: and (f) when payment was made. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Plaintiff further objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. 14. State whether any agreement or agreements, written or oral, were made between the Plaintiff and Defendant. Provide an exact description of such agreements which includes: (a) what parties, entities, persons or companies where (sic) involved in the agreements; (b) the time, date, and place the agreements took place and who was present; (c) every term and condition of the agreements; (d) the responsibilities of all parties, entities, persons or companies involved in the agreements; (e) how revenues were to be shared amongst the parties, entities, persons or companies involved in the agreements; and (f) attach any copies of such agreements. PLAINTIFF'S ANSWER: In 2006, Plaintiff and Defendant entered into an oral agreement whereby Defendant would provide maintenance of the customer relationship and customer support to the end-user of WorkXpress software. In exchange, Defendant received a 40% commission. The oral agreement was not for any specified period of time. Termination of the agreement by either party was not subject to any conditions. 16. State the exact dates that all verbal and written VAR or Agent agreements ratified by Treff LaPlante, Express Dynamics and/or WorkXpress were ratified. 9 PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory as vague, ambiguous, and unintelligible and on the ground that it is overlybroad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Plaintiff further objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. 27. Admitted. 28. Denied. This paragraph contains conclusions of law which do not require a response. To the extent that this paragraph contains factual averments, the same are specifically denied and strict proof thereof is demanded at the time of trial. By way of further response, Plaintiff explained to Defendant in the August 19`x' letter the reasons why each response was appropriate and responsive under the rules of court. See Exhibit A. The letter contained the following explanations: You state in your Motion to Compel that the following responses to interrogatories are not sufficient according to your requirements and that Plaintiff` must be compelled to provide information requested from Defendant. Pa. R. Clv. P. 4006(a)(2) clearly states that, "Each interrogatory shall be answered fully and completely unless objected to, in which event the reasons for the objection shall be stated in lieu of an answer." In some circumstances, even upon an objection, Plaintiff has also provided an answer to the interrogatory. In Interrogatories Nos. 3 through 6 and No. 10, cited below, the objections are clearly sufficient and responsive in that the information requested in these Interrogatories is overly broad and exceeds the scope of the relevant time period, which began when the relationship between Defendant and Plaintiff formed in 2006. Further, this information is not relevant to the present action in that any claims of a breach of contract between Plaintiff and other employees does not involve Defendant and involves a separate and distinct agreement which is not at issue here and is irrelevant to the current action. Accordingly, the same rationale is applicable to Interrogatory No. 6 because any other legal proceeding with the Plaintiff as a party is irrelevant to the current action and to the matter at hand regarding the relationship bethveen Plaintiff and Defendant. The only relevant matter is the agreement that existed between Plaintiff and Defendant and claims of breach of contract by other 10 individuals against Plaintiff are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing, Plaintiff will supplement this answer to inform you that Plaintiff has never been involved in a lawsuit, whether a Plaintiff or defendant. In addition to the reasons presented above, Interrogatory No. 10 also does not require any further response because it requests information that is completely irrelevant to the current cause of action and is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff's tax returns can provide no information regarding the terms of an agreement between Plaintiff and Defendant in this declaratory judgment action. Based on similar grounds as stated above, the following Answers to Interrogatories that Defendant cites in his Motion to Compel are also proper under the rules of court and are responsive as required by the rules of court. The following Interrogatories request proprietary and confidential information that is completely irrelevant to the facts at issue in this case and is information which is not reasonably calculated to lead to the discovery of admissible evidence. The contact information for all persons involved in the development of Plaintiffs software, the sales and marketing of the software, and any VAR, agent, or partner of the software is irrelevant and requests the personal information of individuals who have absolutely no information in regard to this specific matter and who expect their personal information to remain confidential. Further, the Interrogatories request information that precedes the scope of the current action, since the relationship between Plaintiff and Defendant did not form until 2006. Interrogatories Nos. 11 through 13 request information from 2002, well before the relevant time period. Further, no information prior to the formation of the date of the agreement between Plaintiff and Defendant has any bearing or relevancy in this case since the agreement at issue did not form until 2006. Additionally. when appropriate, Plaintiff did list the relevant individuals in Interrogatories Nos. I I and 12. While the Answer to Interrogatory No. 14 was not specifically broken into subparts per the Interrogatory, this Answer is responsive and addresses the information requested in each subpart. In response to subpart (a), Plaintiff and Defendant were involved in the agreement. In response to subpart (b), the agreement was entered into sometime in 2006 with Plaintiff and Defendant present. In response to subparts (c) and (d), the terms, conditions, and responsibilities of the agreement were that Defendant would provide maintenance of the customer relationship and customer support to the end-user and in exchange would receive a 401/0 commission. Further, the oral agreement was not for a specific period of time and termination of the agreement by either party was not subject to any conditions per the oral agreement. In response to subpart (e), revenues were shared by paying Defendant a 40% commission. Since the agreement was oral, there is no copy of such agreement in regard to subpart (t). Finally, in regard to the last of the Interrogatories that Defendant lists as nonresponsive or deficient, the Interrogatory that Defendant cites is actually No. 16, not No. 15. This response to Interrogatory No. 16 is responsive and appropriate in that, again, the request is not reasonable in time and scope because the Interrogatory sets no perimeters in regard to the date. Further, this request is incredibly broad and requests irrelevant information since all other VAR or Agent agreements are irrelevant to this case. The only relevant agreement is the agreement that was in place between Defendant and Plaintiff. Any information gleaned from the agreements between Plaintiff and other VARs or Agents is not reasonably calculated to lead to the discovery of admissible evidence because those agreements have absolutely no role in regard to the terms and conditions of the agreement in place between Plaintiff and Defendant. 29. Admitted. By way of further response, Plaintiff had no obligation to respond to Defendant's Preliminary Objections since this was not the proper mechanism for resolving discovery disputes and a Rule to Show Cause was never issued. Finally, as set forth above and by letter dated August 19, 2010, Plaintiff's responses are sufficient and are appropriate under the Pennsylvania and Cumberland Country Rules of Civil Procedure. 30. Admitted. Based on the procedural defects and impropriety of filing objections to Plaintiffs Answers to Defendant's First Set of Interrogatories, Plaintiff was not required by the rules of court to respond to Defendant. By way of further response, Plaintiff had no obligation to request additional time or explain Plaintiffs answers as they were appropriate and responsive under both the Pennsylvania and Cumberland County Rules of Civil Procedure. 31. Denied. This paragraph contains conclusions of law which do not require a response. To the extent that this paragraph contains factual avennents, the same are specifically denied and strict proof thereof is demanded at the time of trial. By way of further response, Plaintiff had no obligation to respond to Defendant or to supply further information as Plaintiffs answers were appropriate and responsive under both the Pennsylvania and Cumberland County Rules of Civil Procedure. Additionally, after Defendant filed his Motion to Compel on August 3, 2010, Plaintiff did provide Defendant with correspondence dated August 19. 2010, which 12 discussed in detail Plaintiff's basis for its objections/responses under the rules of court. See Exhibit A. 32. Admitted in part, denied in part. Admitted that this Honorable Court has the authority to compel written discovery responses when permitted by the Pennsylvania and Cumberland County Rules of Civil Procedure. It is specifically denied that all objections must be waived. It is further denied that this Honorable Court should grant Defendant's motion to compel since Plaintiffs Answers to Interrogatories are in fact proper and appropriate under the Pennsylvania and Cumberland County Rules of Court. WHEREFORE, Plaintiff, Express Dynamics, LLC d/b/a WorkXpress, respectfully requests that this Honorable Court enter an Order denying Defendant Raymond Spellman's Motion to Compel Plaintiff's Answers to Interrogatories. Respectfully submitted, RHOADS & SINON LLP By. J(•C/ I"Y Attorney I.D. No. 74486 Kevin M. Gold Attorney I.D. No. 70265 Kelly H. Decker Attorney I.D. No. 84886 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Express Dvnatnics, LLC(I/b/a Workk?)ress 13 CERTIFICATE OF SERVICE I hereby certify that on this 13"' day of September, 2010, a true and correct copy of the foregoing "Plaintiff Express Dynamics, LLC d/b/a WorkXpress's Answer to Defendant's Motion to Compel Answers to Interrogatories was served by means of United States mail, first class, postage prepaid, upon the following: Raymond Spellman 327 Morris Avenue Boonton, New Jersey 07005 EXHIBIT "A" FILE COPY Kelly H. Decker p!i (7!7) ' 37-6735 Ji (,-17)238-,S0'3 RHOADS & SINON LLP kdecker irhoads ninon com FILENO: 84393 • August 19, 2010 Re: Express Dynamics, LLC d/b/a WorkXpress v. Ravmond Spellman; Cumberland Countv Court of Common Pleas Docket No. 10-1041 Mr. Raymond Spellman 327 Morris Avenue Boonton, NJ 07005 Dear Mr. Spellman: Via Hand Deliverv This letter serves to address the deficiencies in Defendant Raymond Spellman's ("Spellman" or "Defendant") discovery responses and the sufficiency of Plaintiff Express Dyanamics, LLC d/b/a WorkXpress' ("WorkXpress") discovery responses. Each subject is addressed in turn below. Deficienev of Your Responses to Plaintiffs First Set of Interrogatories and Requests for Production of Documents First with respect to your discovery responses, on May 28, 2010, WorkXpress filed a Motion to Compel Defendant's Answers to Interrogatories and Requests for Production of Documents. On June 2, 2010, the Court issued a Rule to Show Cause stating that you had twenty (20) days within which to file an answer to the motion and that an argument would be heard on the matter on July 8, 2010. Defendant did not file an answer to the Motion. The day before the hearing was to be held, on July 7, 2010, we received your untimely Answers to Interrogatories and Requests for Production of Documents. Based on the receipt of those answers and the time constraints on reviewing those answers prior to argument the following day, the Court continued the argument on Plaintiff's Motion to Compel until Thursday, August 19, 2010. Reviewing your Answers to Interrogatories and Requests for Production of Documents, it is clear that your answers are legally deficient and must be supplemented under the applicable Rules of Court. Under Pa. R. Civ. P. 4019(a)(1), the court may make an appropriate order if a party fails to serve sufficient answers. Discussed below are the specific interrogatories and your responses to those interrogatories that we believe are deficient under the rules of court. 2. Identify each person who has knowledge of facts concerning the issues raised in One South Market Square, 12th Floor • P.O. Box 1146 • Harrisburg, PA 17108-1140" • ph 7 17.233.5731 IVIV 7.I'll otlf i-Gill rlri rnti>> AuUust 19. 2010 PaL,e 2 Plaintiffs Complaint and Defendant's Answer and with respect to each person so identified, state the facts of which they have knowledge. YOUR ANSWER: Defendant alleges that the following people have knowledge of the issues: Julie Spellman,l'homas Lertola and Treff LaPlante. The Answer to Interrogatory No. 2 is deficient in that while it does answer the first part of the Interrogatory regarding the identity of people with knowledge of the facts concerning the issues in this case, Defendant fails to address in any way the second part of the Interrogatory regarding the facts of which those named individuals have knowledge. This is information that is reasonably calculated to lead to the discovery of admissible evidence and must be answered by Defendant. 10. In your Answer to the Complaint, you specifically deny that you were a VAR for WorkXpress. State or describe how you characterize your relationship with WorkXpress from 2006 -2009 and identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing the proper venue for this case is Morris County,. New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton, New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenues from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date. Defendant's Answer to Interrogatory No. 10 is nonresponsive as to the information requested in the interrogatory. Plaintiff specifically requests that Defendant describe his relationship with WorkXpress from 2006-2009. Defendant's objections are unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that Defendant's position with WorkXpress is clearly a significant matter in this case. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding Defendant's beliefs regarding his relationship with WorkXpress during the course of his employment. Additionally, the information that Defendant does provide after his objections is not. in any way responsive to Plaintiffs Interrogatory, Plaintiff requested Defendant's characterization of his relationship with WorkXpress during 2006-2009. Defendant merely stated that venue was improper and that Plaintiff had no right to cancel the agreement. This Answer to Interrogatory No. 10 is completely nonresponsive and deficient. 1 I. Identify the specific services that you provided to customers, such as Servolift, pursuant to your oral agreement with WorkXpress. August t9. 2010 Page 3 YOUR ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome and seek information that is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton, New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date. Defendant's Answer to Interrogatory No. 11 is equally as nonresponsive as the Answer to Interrogatory No. 10. Plaintiff specifically requests that Defendant describe the services that he provided to customers pursuant to the oral agreement with WorkXpress. As discussed in the analysis above regarding Defendant's Answer to Interrogatory No. 10, Defendant's objections are unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that Defendant's services to WorkXpress's customers are clearly a significant matter in this case. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding Defendant's services to WorkXpress's customers during the length of the oral agreement. Additionally, the information that Defendant does provide after his objections is not in any way responsive to Plaintiff's Interrogatory. Defendant merely stated that venue was improper and that Plaintiff had no right to cancel the agreement. Defendant does not in any way address the services that he purportedly provided to customers. This Answer to Interrogatory No. 11 is completely nonresponsive and deficient. 13. In ¶17 of your Answer you state, in part, "VAR or Agency Agreements are irrelevant as it concerns Servolift." With respect to this allegation, identify each fact or circumstance that supports this contention, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the foregoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton, New Jersey 07005. Further, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and lastly the agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date. Further, Defendant received a letter from Treff LaPlante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing August 19. 20 10 Pave 4 agreement between Defendant and Treff LaPlante, Express Dynamics and or `Fork Express. Defendant's Answer to Interrogatory No. 13 is completely nonresponsive as well. Plaintiff specifically requests that Defendant identify facts and witnesses supporting his contention that. VAR/Agency Agreements are irrelevant as they concern Servolift. As discussed in the analysis above regarding Defendant's Answers to Interrogatories Nos. 10 and 11, Defendant's objections are unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that the oral agreement as it pertains to Servolift is clearly a significant matter in this case. Further; the Interrogatory is neither vague nor ambiguous and clearly requests information regarding the oral agreement at issue in this case. Additionally, the information that Defendant does provide after his objections is not in any way responsive to Plaintiff's Interrogatory. Defendant. merely stated that venue was improper and that Plaintiff had no right to cancel the agreement. Defendant does not in any way address the services that he purportedly provided to customers. The rest of the Answer to Interrogatory No. 13 simply argues that "Defendant has no obligation" to alter his arrangement with Plaintiff but again, Defendant fails to in any way address the actual information requested in the Interrogatory. This Answer to Interrogatory No. 13 is completely nonresponsive and deficient. 14, In 1119 of your Answer you state, in part, "Express Dynamics. ..was unaware of the New Jersey based Servolift or Lertola and had no prior knowledge of their existence and no prior relationship with Servolift or their employees or their agents." Identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Interrogatory 14 requires no further clarification. Defendant's Answer to Interrogatory No. 14 is completely nonresponsive and deficient, In fact, the Answer is so deficient that it is as if Defendant had merely left this Answer blank. Defendant has an obligation to answer these Interrogatories. Interrogatory No. 14 merely requests that Defendant support his contention that Plaintiff was unaware of Servolift or Lertola until Defendant became involved with Plaintiff. In order to make such a contention, Defendant must have some basis for his claim; therefore, Defendant must provide the facts and/or witnesses that support such a sweeping statement. Defendant's Answer to Interrogatory No. 14 is clearly nonresponsive and deficient. 15. In ¶ 19 of your Answer you state, in part, "Defendant never gave Plaintiff any right to term :nate the agreement and Defendant is lawfully entitled to all funds rightfully earned and due from Servolift." Identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in ally way pertains to the information contained in said allegation. ALI,WSt 19. 2010 Paze YOUR ANSWER: Interrogatory 15 required no further clarification. Neither Treff LaPlante, Express Dynamics or WorkXpress has any right or authority to unilaterally cancel the revenue sharing agreement and keep all of the revenue from the Servolift contract for them. Defendant's Answer to Interrogatory No. 15 is completely nonresponsive and deficient. Interrogatory No. 15 merely requests that Defendant support his contention that Plaintiff had no right to terminate the agreement and that Defendant was entitled to continue receiving funds from Servoli ft. In order to make such a contention, Defendant must have some basis for his claim; therefore, Defendant must provide the facts and/or witnesses that support such a sweeping statement. Defendant's Answer merely restates the statement cited in Interrogatory No. 15 and does not in any way provide any facts and/or witnesses which support Defendant's contention. Defendant's .Answer to Interrogatory No. 15is clearly nonresponsive and deficient. 16. In your "First Affirmative Defense" included in your Answer you state, "The Complaint fails as the entire case is set up on the status of this Defendant as if a VAR when the real status is that of a partner in particular and qua Servolift." Identify each fact which you claim supports this contention. A complete answer will include the identity of each witness with knowledge relative to this contention and each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Defendant received a letter from Treff LaPlante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff LaPlante, Express Dynamics and or Work Express and is rightfully entitled to all monies agreed to in the revenue sharing agreement. Defendant's Answer to Interrogatory No. 16 is nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant identify facts and/or witnesses with information regarding his claim that Defendant was a partner in particular. Instead, Defendant responds by quoting a passage from a letter from Treff LaPlante of WorkXpress and again stating that he was under no obligation to alter the agreement with Plaintiff. Again, Defendant does not address the specific information requested in the Interrogatory and instead provides an Answer which merely reiterates Defendant's position in this case but does not provide any facts or witnesses specifically regarding Defendant's contention that he was a partner in particular. This Answer to Interrogatory No. 16 is completely nonresponsive and deficient. 17. In your "Second Affirmative Defense" to Plaintiff's Complaint you state, "The Plaintiff's claims are barred in whole or in part by virtue of the Statue [sic] of Frauds." Identify each fact that supports this contention. A complete answer will include the identity of each witness with knowledUe relative to this contention and August 19, 2010 Paue 6 each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Defendant alleges that the Plaintiff has acted wrongly and committed "fraud" as demonstrated in Plaintiff's own letter to Defendant dated August 24, 2009 that states in part: "As stated in previous communications, your status as a partner of WorkXpress has been suspended since the end of March, due entirely to your lack of response regarding the type of partner you were electing to continue forward as. As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we fell it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Plaintiffs own words prove that they want to transition the Defendant into an agency or value added reseller status. Defendant's Answer to Interrogatory No. 17 is nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant identify facts and/or witnesses with information regarding his claim that the action is barred by the Statute of Frauds. Clearly, Defendant either does not understand the legal doctrine of the Statute of Frauds or is purposely misunderstanding the doctrine as he instead bases his answer on a supposed "fraud" that was perpetrated by Plaintiff. Regardless of the reason for Defendant's misunderstanding, Defendant's Answer is not responsive to the Interrogatory regarding his claim that the Statute of Frauds bars Plaintiff's claim. Nothing in the Answer relates to the Statute of Frauds in any manner. This Answer to Interrogatory No. 17 is completely nonresponsive and deficient. 23. In your Answer to Plaintiff's Complaint, you assert WorkXpress did not have the right, power or authority to change the terms of the Agreement. With respect to such allegation, identify each fact that supports this allegation, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Defendant received a letter from Treff LaPlante on August 24, 2009 that states in part: "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we fell it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Defendant has no obligation or desire to change or alter the existing revenue sharing agreement between Defendant and Treff LaPlante, Express Dynamics and or Work Express. Defendant's Answer to Interrogatory No. 23 is completely nonresponsive and deficient. Interro,,atory No. 23 requests that Defendant support his contention that Plaintiff had no right to change the terms of the agreement. In order to make such a contention, Defendant must have some basis for his claim; therefore, Defendant must provide the facts and./or witnesses that support such a sweeping statement. Instead, Defendant provides a completely nonresponsive Answer which cites a sentence from a letter and his position that he was under no obligation to change the agreement. Defendant in no way addresses or answers the specific information requested in this Interrogatory - August 19. 2.)10 Pate 7 namely, Defendant's support for his assertion that Plaintiff had no authority to change the oral agreement- Defendant's Answer to Interrogatory No. 23 is clearly nonresponsive and deficient. 24. Do you contend that your agreement with WorkXpress could never be terminated? YOUR ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the foregoing our defense is: One, the proper venue for this case is Morris County, New Jersey. Two, the Plaintiff has no right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them. Three, our agreement has an end date. Defendant's Answer to Interrogatory No. 24 is completely nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant state whether he contends that his agreement with Plaintiff could never be terminated. Defendant's objections are unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that the core of the case revolves around the oral agreement and the termination of said agreement. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding Defendant's contentions regarding the termination of the oral agreement with Plaintiff. Additionally, the information that Defendant does provide after his objections is not in anyway responsive to Plaintiffs Interrogatory. Plaintiff requested the facts and/or witnesses that support Defendant's contention regarding the termination of the oral agreement. Defendant instead merely stated that venue was improper and that Plaintiff had no right to cancel the agreement. Defendant then asserts that the agreement has an end date but it is unclear as to whether Defendant is contending that the agreement could or could not be terminated. This Answer to Interrogatory No. 24 is completely nonresponsive. 26. In your Answer to Plaintiffs Complaint, you deny that the oral agreement between WorkXpress and Defendant is terminable at will. Identify each fact supporting your contention, identify each witness with knowledge relative to this contention, and identify each document which discusses, refers to, or in any way pertains to the information contained in said allegation. YOUR ANSWER: Defendant objects to this interrogatory as vague and ambiguous, and on the ground that it is overly broad and unduly burdensome. Notwithstanding the foregoing the proper venue for this case is Morris County, New Jersey as the agreement was ratified at 327 Morris Avenue, Boonton, New Jersey 07005. Neither Treff LaPlante, Express Dynamics or WorkXpress has any right or authority to unilaterally cancel our agreement and keep all of the revenue from the Servolift contract for them and for anyone to think that someone would agree to such a stipulation in an oral agreement is absurd. The agreement between Raymond Spellman, Treff LaPlante and Express Dynamics has an end date. Defendant's Answer to Intern-ogatory No. 26 is completely nonresponsive as to the information requested in the Interrogatory. Plaintiff specifically requests that Defendant identify August 19, 2010 Pave 8 facts an(ior witnesses that support his contention that his agreement with Plaintiff was not terminable at will. Defendant's objections are unreasonable in that the Interrogatory clearly is calculated to lead to the discovery of admissible evidence in that the core of the case revolves around the ora! agreement and the termination of said agreement. Further, the Interrogatory is neither vague nor ambiguous and clearly requests information regarding Defendant's contentions regarding the termination of the oral agreement with Plaintiff. Additionally. the information that Defendant does provide after his objections is not in any way responsive to Plaintiff's Interrogatory. Plaintiff requested Defendant's facts and/or witnesses supporting his contentions retarding the termination of the oral agreement. Defendant instead merely stated that venue was improper and that Plaintiff had no right to cancel the agreement. Defendant then asserts that the agreement has an end date but fails to provide any facts and/or witnesses to support his contention that the oral agreement was not terminable at will. This Answer to Interrogatory No. 26 is completely nonresponsive and deficient. Therefore, after reviewing your Answers to Plaintiff's First Set of Interrogatories, it is clear that the above-cited Answers are nonresponsive and deficient for the reasons stated above. Your failure to address these Answers and appropriate amend the Answers with responsive statements will result in a request for the Court to compel said answers. if. Your Motion to Compel Plaintiff's Answers to Defendant's First Set of Interrogatories On August 5, 2010, you filed a Motion to Compel Plaintiff's Answers to Interrogatories. The Court has not yet issued a Rule to Show Cause requiring a response from Plaintiff or setting this matter for a hearing. However, in the interest of resolving this matter and to avoid the necessity of a hearing on this motion, I provide you with the following information. I have reviewed our own responses to Defendant's First Set of Interrogatories. Discussed below are the reasons why the objections and answers that you indicated in your Motion to Compel as deficient or nonresponsive are in fact responsive and permitted under the rules of court. 14. State whether any agreement or agreements, written or oral, were made between the Plaintiff and Defendant. Provide an exact description of such agreements which includes: (a) what parties, entities, persons or companies where (sic) involved in the agreements; (b) the time, date, and place the agreements took place and who was present; (c) every term and condition of the agreements; (d) the responsibilities of all parties, entities, persons or companies involved in the agreements; (e) how revenues were to be shared amongst the parties, entities, persons or companies involved in the agreements; and (f) attach any copies of such agreements. PLAINTIFF'S ANSWER: In 2006, Plaintiff and Defendant entered into an oral AU'LISt 19. 20 10 Page 9 agreement whereby Defendant would provide maintenance of the customer relationship and customer support to the end-user of `Vork_Xpress software. In exchange, Defendant received a 40% commission. The oral agreement was not for anN specified period of time. Termination of the agreement by either party was not subject to any conditions. While the Answer to Interrogatory No. 14 was not specifically broken into subparts per the Interrogatory, this Answer is responsive and addresses the information requested in each subpart. In response to subpart (a), Plaintiff and Defendant were involved in the agreement. In response to subpart (b), the agreement was entered into sometime in 2006 with Plaintiff and Defendant present. In response to subparts (c) and (d), the terms, conditions, and responsibilities of the agreement were that Defendant would provide maintenance of the customer relationship and customer support to the end-user and in exchange would receive a 40% commission. Further, the oral agreement was not for a specific period of time and termination of the agreement by either party was not subject to any conditions per the oral agreement. In response to subpart (e), revenues were shared by paying Defendant a 40% commission. Since the agreement was oral, there is no copy of such agreement in regard to subpart (f). You state in your Motion to Compel that the following responses to interrogatories are not sufficient according to your requirements and that Plaintiff must be compelled to provide information requested from Defendant. Pa. R. Civ. P. 4006(a)(2) clearly states that, "Each interrogatory shall be answered fully and completely unless objected to, in which event the reasons for the objection shall be stated in lieu of an answer." In some circumstances, even upon an objection, Plaintiff has also provided an answer to the interrogatory. In Interrogatories Nos. 3 through 6 and No. 10, cited below, the objections are clearly sufficient and responsive in that the information requested in these Interrogatories is overly broad and exceeds the scope of the relevant time period, which began when the relationship between Defendant and Plaintiff formed in 2006. Further, this information is not relevant to the present action in that any claims of a breach of contract between Plaintiff and other employees does not involve Defendant and involves a separate and distinct agreement which is not at issue here and is irrelevant to the current action. Accordingly, the same rationale is applicable to Interrogatory No. 6 because any other legal proceeding with the Plaintiff as a party is irrelevant to the current action and to the matter at hand regarding the relationship between Plaintiff and Defendant. The only relevant matter is the agreement that existed between Plaintiff and Defendant and claims of breach of contract by other individuals against Plaintiff are irrelevant and not reasonably calculated to lead to the discotiery of admissible evidence. Notwithstanding the foregoing, Plaintiff will supplement this answer to inform you that Plaintiff has never been involved in a lawsuit, whether a Plaintiff or defendant. ALt,USt 19. 20 10 Pave 10 3. Please state whether within the last ten vears any person has claimed that you breached an'y' contract. PLAINTIFF'S A.NSNVER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. 4. If '/our answer to Interrogatory No. 3 was yes, please identify the person who advanced such claim. PLAINTIFF'S ANSWER: See answer to interrogatory no. 3. If your answer to Interrogatory No. 3 was yes, please describe the means by which such claim was advanced. PLAINTIFF'S ANSWER: See answer to interrogatory no. 3. Please state whether within the last ten years any person commenced a legal proceeding claiming that you breached any contract. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. 10. List and attach to the Answers to these Interrogatories true copies of federal, state, and local tax returns from 2002 to 2010 for Treff LaPlante, Express Dynamics and WorkXpress. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope. In addition to the reasons presented above, Interrogatory No. l.0 also does not require any further response because it requests information that is completely irrelevant to the current cause of action and is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs tax roturns can provide no information regarding the terms of an agreement between Plaintiff and Defendant in this declaratory judgment action. Based on similar grounds as stated above, the following Answers to Interrogatories that Defendant cites in his Motion to Compel are also proper under the rules of court and are responsive as required by the rules of court. The following Interrogatories request proprietary and confidential information that is completely irrelevant to the facts at issue in this case and is • Au,ust 19. 2010 PaL,e 1 1 information which is not reasonably calculated to lead to the discovery of admissible evidence. The contact information for all persons involved in the development of Plaintiff's software, the sales and marketing of the software, and any VAR, agent, or partner of the software is irrelevant and requests the personal information of individuals who have absolutely no information in regard to this specific matter and who expect their personal information to remain confidential. Further, the Interrogatories request information that precedes the scope of the current action, since the relationship between Plaintiff and Defendant did not form until 2006. Interrogatories Nos. 11 through 13 request information from 2002. well before the relevant time period. Further, no information prior to the formation of the date of the agreement between Plaintiff and Defendant has any bearing or relevancy in this case since the agreement at issue did not form until 2006. Additionally, when appropriate, Plaintiff did list the relevant individuals in Interroaatorie s Nos. 11 and 12. 11. List and attach to the Answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email addresses of any person, employee, company or entity that was utilized in the development of Plaintiff's software from 2002 to 2010 and state: (a) the dates, times and location of where each person or company worked; (b) the type of work the person or company performed; (c) how the person or company was corzpensated; (d) the amount paid or bartered as compensation; (e) the form of payment or barter: (0 when payment was made; (g) complete educational and technical background; and (h) whether the person, employee, company or entity is still employed or provides service and if not why they no longer are employed or provide services. PLAINTIF'F'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Moreover, Plaintiff objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. Notwithstanding the foregoing and with full reservation of rights, Plaintiff lists the following employees, who may be contacted through the undersigned counsel. Drew McLain (lead developer) Brian Bransteitter (senior developer) James Armes (senior developer) . August 19. 2(;10 Pa(ye 12 12. List and attach to the Answers to these Interrogatories true copies of all of the names, addresses, phone numbers, and email addresses of any person, employee, company or entity that was utilized in the sales and'or marketing of Plaintiff's software from 2002 to 20:.0 and state: (a) the dates, times and location of where each person or company worked; (b) the type of work the person or company performed; (c) how the person or company was compensated; (d) the amount paid or bartered as compensation; (e) the forn-i of payment or barter: (f) when payment was made; and (g) complete educational and technical back--roLlnd. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time of- scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Plaintiff objects to this interrogatory on the basis that the information requested consists of information that is proprietary and confidential in nature. Notwithstanding the foregoing, and with full reservation of rights, Plaintiff identifies the following individuals who currently conduct sales and/or marketing activities for WorkXpress and who may be contacted through the undersigned counsel. Treff LaPlante (Sales Team Leader) Jacob Burns (Marketing) 13. List and attach to the Answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email addresses or any person, company or entity that is or was classified as a VAR, Agent or Partner of Plaintiff's software from 2002 to 2010 and state: (a) the dates, times and location of where each person or company worked; (b) the type of work the person or company performed; (c) how the person or company was compensated; (d) the amount paid or bartered as compensation; (e) the form of payment or barter: and (f) when payment was made. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Plaintiff further objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. Finally, In regard to the last of the Interrogatories that Defendant lists as nonresponsive or deficient, the Interrogatory that Defendant cites is actually No. 16, not No. 15. This response to Interrogatory No. 16 is responsive and appropriate in that, again, the request is not reasonable in August 19, 2G10 Page 13 time and scope because the Interrogatory sets no perimeters in regard to the date. Further,. this request is incredibly broad and requests irrelevant information since all other VAR or Agent agreements are irrelevant to this case. The only relevant agreement is the agreement that was in place between Defendant and Plaintiff. Any information gleaned from the agreements between Plaintiff and other VARs or Agents is not reasonably calculated to lead to the discovery of admissible evidence because those agreements have absolutely no role in regard to the terms and conditions of the agreement in place between Plaintiff and Defendant. 16. State the exact dates that all verbal and written VAR or Agent agreements ratified by Treff LaPlante, Express Dynamics and/or WorkXpress were ratified. PLAINTIFF'S ANSWER: Plaintiff objects to this interrogatory as vague, ambiguous, and unintelligible and on the ground that it is overlybroad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Plaintiff further objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. Therefore, all of the Objections and Answers to Interrogatories which Defendant claims in his Motion to Compel are nonresponsive or deficient are in fact in compliance with the rules of court and have been properly answered and/or objected to in regard to each particular Interrogatory. Rescheduling Your Deposition Furthennore, concerning your deposition that was to have occurred in May of this year, we would like to reschedule your deposition for one of the following dates in September 2010: September 14, 21, 22, 23, 24, 29, or 30th, or one of the following dates in October 2010: October 5, 6, or 7th. Please respond to us with the dates of those listed that are convenient for you by Tuesday, August 31, 2010, or we will choose one of those dates and will make the appropriate arrangements for your deposition here at our offices in Harrisburg, Pennsylvania. Plaintiff's Answers to Defendant's Second Set of Interrogatories On or about July 6, 2010, Defendant served a second set of interrogatories on Plaintiff. On August 10, 2010. the undersigned sent correspondence to you requesting a two week extension, until August 24" to complete answers to said interrogatories. We will respond to Defendant's second set of interrogatories by August 24`x'. ALIZISt 19. 2C 10 Pace 14 If you have any questions, please feel free to contact me. Thank You. Very truly yours, RHOADS & Sl?oN LLP By: Kelly H. Necker cc: Treff LaPlante (via email) KHD kas r_r,?_ , ??'?_°? - ?,t,?.l G1?_ ?, ?1r ;??- ?} `; n :? ??::; vi EXPRESS DYNAMICS, LLC, d/b/a WORKEXPRESS, Plaintiff' vs. RAYMOND SPELLMAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-1041 CIVIL IN RE: PLAINTIFF'S SUPPLEMENTAL MOTION TO COMOPEL ORDER AND NOW, this 1 S? day of September, 2010, argument on the above-captioned matter is set for Thursday, October 7, 2010, at 3:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Kelly H. Decker, Esquire For the Plaintiff ./ Raymond Spellman, Pro Se Defendant rim 1?or L'$-; S ryl;a l Kevin A. ess, P. J. r C-1 - ( ; o m y Ti CJ3 .- ? T . f} m _a? f/ EXPRESS DYNAMICS, LLC, IN THE COURT OF COMMON PLEAS OF d/b/a WORKEXPRESS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff . CIVIL ACTION -LAW vs. NO. 10-1041 CIVIL RAYMOND SPELLMAN, Defendant ORDER AND NOW, this ~-z '~ day of September, 2010, it appearing that arguments on the motions to compel filed in this case aze to be heazd by the Honorable Kevin A. Hess on Thursday, October 7, 2010, at 3:30 p.m., the Defendant's Motion to Compel Answers to Interrogatories listed for azgument for Wednesday, October 6, 2010, is STRICKEN from the list. BY THE COURT, elly H. Decker, Esquire For the Plaintiff /Raymond Spellman, Pro Se Defendant :rlm WI~~ES' rnh~l~d~ 9/a3~r~ c-~ c -~ ~ cv ~ rra ~~ U, r r~-~ ~Q D~ --~ .,.~ cn I"r7 `o rv w ~. w .~- ~ -~ r7't c=- -~o ~ O ca --~ c~ ~~ ~~ ~~ o,.,., -~: Ftt~.~(~-~~~'f ~~ C~ TAE ~'~~;+ a~Hvz=,~~~A~~•~ Raymond J Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 Defendant L ~ E J ~° ~ 7 J ~ 7 1 ~ C_ ~..+ '+: \ P EXPRESS DYNAMICS, LLC d/b/a IN THE COURT OF COMMON PLEASE WORKXPRESS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. CIVIL ACTION -LAW No. 10-1041 Civil RAYMOND J SPELLMAN, Defendant. DEFENDANT'S MOTION TO COMPEL PLAINTIFF EXPRESS DYNAMICS LLC dJb/a WORKIQ'RESS ANSWERS TO SECOND SET OF INTERROGATORIES PURSUANT TO PA.R.C.P 4019 NOW COMES, Defendant, Raymond Spellman and files the within Motion to Compel Plaintiff Express Dynamics, LLC d/b/a Workxpress Answers to Interrogatories pursuant to Rule 4019(a)(1) of the Pennsylvania Rules of Civil Procedure, stating as follows: 1. Plaintiff Express Dynamics, LLC and WorkXpress, LLC ("WorkXpress") is a software development company currently located at 453 Lincoln Street, Carlisle, Pennsylvania 17013. 2. Defendant Raymond Spellman ("Spellman") is located at 327 Morris Avenue, Boonton, Morris County, New Jersey 07005. 3. Defendant entered into an oral agreement with Plaintiff that defined the sharing of revenues for Defendants customer Servolift, LLC ("Servolift") located at 105 West Dewey Ave, Building B, Wharton, Morris County, New Jersey 07855. 4. Plaintiff, a Pennsylvania Limited Liability Company, was unaware of the New Jersey based Servolift, and had no prior knowledge of their existence and no prior relationship with Servolift or their employees or their agents prior to Spellman's introduction of Treff LaPlante, Express Dynamics or WorkXpress to Servolift in 2005. 5. Defendant alleges that Plaintiff, with complete malice and in bad faith, filed the Complaint For Declaratory Judgment on February 9, 2010 when Plaintiff learned that a legal action against Plaintiff by Defendant to demand the monies owed Defendant from Plaintiff was imminent. Defendant alleges that Plaintiff filed the action in Pennsylvania for jurisdictional reasons as Plaintiff knows full well that the agreement between the parties was ratified in New jersey making New Jersey the proper jurisdiction for this oral agreement. 6. This meritless and frivolous action, perpetrated on this Defendant and this Court by Plaintiff, is in bad faith and was conceived by Plaintiff as a way to deny Defendant money legally and rightfully earned, owed and due from Servolift. 7. Further, to date the Plaintiff has presented no proof to substantiate the allegations presented in the Complaint for Declaratory Judgment. 8. On July 6, 2010, Defendant served Plaintiff with Defendant`s Second Set Of Interrogatories. 9. On August 10, 2010 Plaintiff responded through their attorney Kelly H. Decker of Rhoads & Sinon requesting a two week extension until August 24, 2010 to submit answers to Defendant's Second Set Of Interrogatories. 10. On or about September 20, nearly two and one half months after Plaintiff received Defendant's Second Set Of Interrogatories Plaintiff filed their Answers to Defendant's Second Set of Interrogatories. 11. Defendant has reviewed Plaintiff's Answers to Defendant`s Second Set of Interrogatories and Defendant has found Plaintiff's Answer to be non- responsive, deficient, ambiguous vague and or avoids to answer the interrogatories as requested. 12. Defendant is filing a motion with this good court to Compel Plaintiff to completely and fully answer the defendant's Second Set of Interrogatories. 13. Plaintiff has made serious claims and accusations, has requested this Declaratory Judgment from this court, and yet Plaintiff, having the burden of proof, and given the opportunity, has not demonstrated any evidence, writing, tape recording, email or any other evidence that substantiates Plaintiff`s claims. Instead, Plaintiff has hired Rhoads & Sinon a high powered Pennsylvania law firm whose website boast over 53 lawyers. This firm makes objection after objection and list procedural error after procedural error but also has not provided any evidence to substantiate Plaintiff's claims. 14. Defendant alleges that the Plaintiff, unable to prove its claims, is simply trying to use expensive and time consuming legal tactics, objections and motions against a Pro Se Defendant who resides approximately 3 hours away for the court. 15. The court should see to it that Plaintiff, who has the burden of proof in this matter, fully and completely presents any and all of its evidence, as requested in Defendants First Set of Interrogatories to Plaintiff. SPECIFIC DEFICIENCIES 16. Defendant's Second Set of Interrogatories: Interrogatory No. 2. states: "In y[ 2 of your Answer To Defendant's First Set of Interrogatories Directed to Plaintiff you identify "Treff T aPlante," "Raymond Spellman" and "Marc Kaufman" as individuals who have knowledge of any relevant facts relating to this case. Further, in '9[ 20 of Plaintiff's Complaint For Declaratory Judgment, Plaintiff alleges that, "WorkXpress denies that Defendant is entitled to any additional payments and that it had the unfettered discretion to terminate the .oral agreement with Defendant at will." For each such individual identified above please state what fact the individual has that allows Plaintiff to "terminate the oral agreement with defendant at will." A complete answer will include the date that the individual learned of the fact(s); what specified place and time that the fact was learned; all people present at the place that the fact was learned; what specific fact the individual knows, and identify each document which discusses, refers to, or in a~,y way pertains to the information cc:~tained in the said allegation." 17. Plaintiff's Answer to this Interrogatory was, "In regard to the relevant facts relating to this case that are held by Raymond Spellman, Defendant, that information is not at this time known to Plaintiff. In regard to the relevant facts relating to this case that are held by Treff LaPlante, as the representative of the party to the oral contract with defendant, Mr. LaPlante was present at the time of the formation of the oral agreement and it is therefore aware of the terms and conditions of the agreement. In regard to i~ ~ ~ ~ .., the relevant facts relating to this case that are held by Marc Kaufman, Mr. Kaufman holds knowledge regarding to whom payments were to be directed, and the amount of any payments to be made to WorkXpress. 18. ThQ Answer to Interrogatory No. '? is deficient in that the information request by Defendant is not completely answered by Plaintiff. In~errogatory No. 2 specifically asks, "For each such individual identified above please state what fact the individual has that allows Plaintiff to "terminate the oral agreement with defendant at will." Plaintiff's answers are non-responsive. Further, Interrogatory No. 2 specifically states that, "A~ complete answer will incluce the date that the indYvidtaal learned of the fact(s); what specified place and time that the fact was learned; all people present at the place that the fact was learned; what specific fact the individual knows, and identify each document which discusses, refers to, or in any way pertains to the information contained in the said allegation." Clearly, and as typical, Plain±if~ s answers are completely non-responsive to the specifics of the question. ~. . , _ , . ~. 19. Defendant's Second Set of Interrogatories: Interrogatory No. 3 states: "In ~ 2 . ., of your Answer To Defendant's First Set of Interrogatories Directed to Plaintiff you identify "Treff LaPlante," "Raymond Spellman" and "Marc Kaufman" as individuals who have knowledge of any relevant facts relating to this case. Further, in ~ 31 of Plaintiff's Complaint For Declaratory Judgment, Plaintiff alleges that, "The law is clear that, if a contract does not specify a definite time or prescribed condition that determine the duration of the relationship, the contract may be terminated by either party at will." In ~ 32 of Plaintiff's Complaint For Declaratory Judgment, Plaintiff alleges that, "Here, the oral agreement between YVorkXpress and Defendant does not specify, and has never specified, that the agreement is for a definite time, nor does the agreement prescribe conditions that determine the duration of the relationship." For each such individual identified above please state what fact the individual has that allows Plaintiff to "terminate the oral agreement with Defendant at will." A complete answer will include the date that the individual learned of the fact(s); what specified place and time that the fact was learned; all people present at the place that the fact was learned; what specific fact the individual knows, and identify each document which discusses, refers to, or in any way pertains to the information contained in the said allegation." 20. Plaintiff's Answer to this Interrogatory was, "As y(2 of Plaintiff's Answer to Defendant's First Set of Interrogatories Direct to Plaintiff states, the individuals listed are those who have knowledge of any relevant facts relating to this case. Therefore, Mr. Kaufman is not an individual who has knowledge of the facts regarding the details of the oral agreement between Plaintiff and Defendant. Further, in regard to the relevant facts relating to this case that are held by Raymond Spellman, Defendant, that information is not at this time known to Plaintiff. In regard Treff LaPlante and his relevant knowledge, Mr. LaPlante was present in 2006 when the oral agreement was formed between Plaintiff and defendant whereby Defendant would provide maintenance of the customer relationship and customer support to the end-user of WorkXpress software. In exchange, Defendant received a 40% commission. The oral agreement was not for any specific period of time: therefore, it was terminable at will. 21. The Answer to Interrogatory No. 3 is deficient in that the information request by Defendant is not completely answered by Plaintiff. Interrogatory No. 3 specifically states, "A complete answer will include the date that the individual learned of the fact(s); what specified place and time that the fact was learned; all people present at the place that the fact was learned; what specific fact the individual knows, and identify each document which discusses, refers to, or in any way pertains to the information contained in the said allegation." Plaintiff's answers are non-responsive as they do not answer "what specified place and time that the fact was learned; nor do they identify each document which discusses, refers to, or in any way pertains to the information contained in the said allegation." This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 22. Defendant's Second Set of Interrogatories: Interrogatory No. 4 states: "In y[ 31 of Plaintiff's Complaint For Declaratory Judgment, Plaintiff alleges that, "The law is clear that, if a contract does not specify a definite time or prescribed condition that determine the duration of the relationship, the contract may be terminated by either party at will. In y[ 32 of Plaintiff's Complaint For Declaratory Judgment, Plaintiff alleges that, "Here, the oral agreement between WorkXpress and Defendant does not specify, and has never specified, that the agreement is for a definite time, nor does the agreement prescribe conditions that determine the duration of the relationship." Please state, with a yes or no answer, whether the agreement between Plaintiff and Defendant requires Plaintiff to share revenues with Defendant for perpetuity?" 23. Plaintiff's Answer to this Interrogatory was, "No, the oral agreement between Plaintiff and Defendant does not require that Plaintiff share revenues with Defendant for perpetuity. The oral agreement was not for any specific period of time and could be terminated at will by either party, thus, effectively terminating any requirement that Plaintiff continue to share revenue with Defendant." 24. The Answer to Interrogatory No. 4 improperly answers the interrogatory. Which specifically asks fora "yes or no answer" only. The interrogatory did not ask for any further comment, opinion or statements and Plaintiff should be compelled to change its answers so that it complies with Interrogatory No. 4. 25. Defendant's Second Set of Interrogatories: Interrogatory No. 5 states: "In ~ 31 of Plaintiff's Complaint For Declaratory Judgment, Plaintiff alleges that, "The law is clear that, if a contract does not specify a definite time or prescribed condition that determine the duration of the relationship, the contract may be terminated by either party at will. In y[ 32 of Plaintiff's Complaint For Declaratory Judgment, Plaintiff alleges that, "Here, the oral agreement between WorkXpress and Defendant does not specify, and has never specified, that the agreement is for a definite time, nor does the agreement prescribe conditions that determine the duration of the relationship." Please state why Plaintiff would withhold money from Defendant until Plaintiff received the funds from Servolift." 26. Plaintiff's Answer to this Interrogatory was, "Plaintiff objects to this interrogatory on the ground that it is overly broad, not limited in time and scope, and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing objection, per the terms of the oral agreement between Plaintiff and Defendant, Defendant was paid a 40% commission based on funds generated from the relationship with Servolift. 27. The Answer to Interrogatory No. 5 is non-responsive and deficient in that it simply does not address the critical part of the Interrogatory which is "Please state why Plaintiff would withhold money from Defendant until Plaintiff received the funds from Servolift." Further, the interrogatory is not overly broad, not limited in time and scope, nor does it seek information that is not reasonably calculated to lead to the discovery of admissible evidence. This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 28. Defendant's Second Set of Interrogatories: Interrogatory No. 7 states: "In ~ 31 of Plaintiff's Complaint For Declaratory Judgment, Plaintiff alleges that, "The law is clear that, if a contract does not specify a definite time or prescribed condition that determine the duration of the relationship, the contract may be terminated by either party at will. In y[ 32 of Plaintiff`s Complaint For Declaratory Judgment, Plaintiff alleges that, "Here, the oral agreement between WorkXpress and Defendant does not specify, and has never specified, that the agreement is for a definite time, nor does the agreement prescribe conditions that determine the duration of the relationship." Please state the length of the term of the contract between Servolift and Plaintiff. A complete answer will include the length of the term of the contract between Servolift and Plaintiff; whether the contract has an automatic renewal clause and what money, if any, would be due Defendant should Servolift cancel or not renew the contract between it and Plaintiff and each document which addresses the length of the term and or renewal clause in the contract between Servolift and Plaintiff." 29. Plaintiff's Answer to this Interrogatory was, "Plaintiff objects to this interrogatory on [the] ground that it is overly broad and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature." 30. Again, the Answer to Interrogatory No. 5 is non-responsive and deficient. Further, the interrogatory is does not request proprietary or confidential information nor is it overly broad, not limited in time and scope, nor does it seek information that is not reasonably calculated to lead to the discovery of admissible evidence. The interrogatory was very simple; "Please state the length of the term of the contract between Servolift and Plaintiff. A complete answer will include the length of the term of the contract between Servolift and Plaintiff; whether the contract has an automatic renewal clause and what money, if any, would be due Defendant should Servolift cancel or not renew the contract between it and Plaintiff and each document which addresses the length of the term and or renewal clause in the contract between Servolift and Plaintiff" and the plaintiff should answer the interrogatory in its entirety. This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 31. Defendant's Second Set of Interrogatories: Interrogatory No. 8 states: "In'~ 3 of Plaintiff's Complaint For Declaratory Judgment, Plaintiff alleges that the agreement between Plaintiff and Defendant, "...arises under the laws of the Commonwealth of Pennsylvania ..." Please state why Plaintiff believes that the agreement between the Plaintiff and Defendant was ratified in Pennsylvania. A complete answer will include with specificity the date, time and location that the agreement was reached in Pennsylvania; the identity of each witness with knowledge relative to this and of the alleged ratification of the agreement; how you claim the agreement was ratified and by what means the agreement was ratified and each document which addresses that Pennsylvania was the location that the agreement was ratified." 32. Plaintiff's Answer to this Interrogatory was, "In 2006, defendant and plaintiff entered into an oral agreement whereby defendant would provide maintenance of the customer relationship and customer support to the end- user of WorkXpress software. In exchange, defendant received a 40% commission. Plaintiff's principle place of business is located in Carlisle, Pennsylvania, payments were made to defendant from Carlisle, Pennsylvania, when Defendant was entitled to payment, and plaintiff performs most of it activities from the Carlisle, Pennsylvania location. Treff LaPlante is the individual with first hand knowledge of the formation of the oral agreement between plaintiff and Defendant. 33. Once again, the Plaintiff is non-responsive, deficient and simply does not answer the interrogatory, specifically, Interrogatory No. 8. Plaintiff's answer does not include with specificity the date, time and. location that the agreement was reached in Pennsylvania; the identity of each witness with knowledge relative to this and of the alleged ratification of the agreement; how Plaintiff claimed the agreement was ratified and by what means the agreement was ratified nor do they identify any document which addresses that Pennsylvania was the location that the agreement was ratified." This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 34. Defendant's Second Set of Interrogatories: Interrogatory No. 9 states: "Please state with specificity what prior knowledge Plaintiff or their employees or agents had of Servolift prior to 2005. A complete answer will include the identity of each witness with knowledge of the relationship and each document which discusses, refers to, or in any way pertains to Interrogatory 9 above." 35. Plaintiff's Answer to this Interrogatory was, "Plaintiff objects to this interrogatory on [the] ground that it is overly broad, unduly burdensoYne, is not limited in time and scope, and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature." 3b. The Answer to Interrogatory No. 9 is non-responsive and deficient. Further, the interrogatory is does not request proprietary or confidential information nor is it overly broad, unduly burdensome, not limited in time and scope, nor does it seek information that is not reasonably calculated to lead to the discovery of admissible evidence. The interrogatory was very simple; "Please state with specificity what prior knowledge Plaintiff or their employees or agents had of Servolift prior to 2005." This is a very simple interrogatory and Plaintiff should be compelled to fully answer the interrogatory. This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 37. Defendant's Second Set of Interrogatories: Interrogatory No. 10 states: "Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Please state what specific and precise terms and conditions govern the agreement between Plaintiff and Defendant. A complete answer should include the date, time and location that the agreement was reached, the entire terms and conditions of the agreement, the identity of each witness with knowledge relative to the agreement; and each document which addresses that Pennsylvania was the location that the agreement was ratified." 38. Plaintiff's Answer to this Interrogatory was, "In 2006, Plaintiff and Defendant entered into an oral agreement whereby Defendant would provide maintenance of the customer relationship and customer support to the end-user of WorkXpress software. In exchange, Defendant received a 40% commission. The oral agreement was not for any specific period of time. Termination of the agreement by either party was not subject to any condition. Treff LaPlante was the representative of Plaintiff with the authority to enter into an oral agreement on behalf of Plaintiff at the time the agreement was entered into by the Plaintiff and Defendant." 39. The Answer to Interrogatory No. 9 is non-responsive and deficient. The interrogatory asks, "what specific and precise terms and conditions govern the agreement between Plaintiff and Defendant and that a complete answer should include the date, time and location that the agreement was reached. Plaintiff never address the date, time and location that the agreement was reached nor does it address what role Plaintiff has in the agreement. Further, although Plaintiff states what was NOT in the agreement by stating "the oral agreement was not for any specific period of time. Termination of the agreement by either party was not subject to any condition." They never identify the entire terms and conditions of the agreement or what role Plaintiff plays in the agreement nor do they identify each document which addresses that Pennsylvania was the location that the agreement was ratified." This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 40. Defendant's Second Set of Interrogatories: Interrogatory No. 11 states: "Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Please state why Plaintiff entered into any agreement that had "few if any precise terms and conditions" with Defendant." 41. Plaintiff's Answer to this Interrogatory was, "Plaintiff objects to this interrogatory as it does not seek information that is reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. " 42. The Answer to Interrogatory No. 11 is non-responsive and deficient. This interrogatory is does not request proprietary or confidential information nor does it seek information that is not reasonably calculated to lead to the discovery of admissible evidence. The interrogatory was very simple and asked "Please state why Plaintiff entered into any agreement that had "few if any precise terms and conditions" with Defendant." This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 43. Defendant's Second Set of Interrogatories: Interrogatory No. 12 states: "Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "As you know, our prior agreement established few if any precise terms and conditions for the relationship, and as such, we feel it is imperative that in order to continue forward we transition you to a formalized agency or value added reseller status." Please state why Plaintiff felt it was necessary to "transition" Defendant to a formalized agency or value added reseller account." A complete answer should include what issue arose that affected the partnership between Plaintiff and Defendant making Plaintiff believe it was necessary to "formalize" the agreement; what issues or complaints Servolift may have had with Defendant, the identity of each witness with knowledge relative to the agreement; and each document which addresses Interrogatory 12." 44. Plaintiff's Answer to this Interrogatory was, "As Plaintiff's business continued to grow, Plaintiff determined that the most efficient manner in which to continue growing the business would be to formalize it employees' positions within the company. As such, those with informal positions or oral agreements were transitioned to formal positions so that (they] had specific titles with specific responsibilities. As an informal VAR with an oral agreement, plaintiff sought to transition Defendant to a more formal relationship with WorkXpress." 45. The Answer to Interrogatory No. 12 is deficient as it does not address, "what issues or complaints Servolift may have had with Defendant, the identity of each witness with knowledge relative to the agreement; and each document which addresses Interrogatory 12. This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 4b. Defendant's Second Set of Interrogatories: Interrogatory No. 13 states: "Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "Although we have offered and remain interested in providing that documentation to you for your review so that we can precisely define the terms and conditions for our relationship, to date, you have refused to even review that documentation. We have received no response from you indicating your willingness to cooperate in this regard. Please state why the Defendant had any obligation to "precisely define the terms and conditions for [the] relationship. A complete answer should include what terms and conditions of the contract forced Defendant to define the terms and conditions for [theJ relationship; what issues or complaints arose that made further clarification of the agreement necessary; the identity of each witness with knowledge relative to the agreement; and each document which addresses Interrogatory 13." 47. Plaintiff's Answer to this Interrogatory was, "The oral agreement entered into by defendant and plaintiff in 200b was not for any specific period of time. Termination of the agreement by either party was not subject to any conditions. As Plaintiff sought to formalize its relationship with its employees, defendant was provided with the option of either formalizing his relationship with Plaintiff or his relationship with plaintiff would be terminated, as indicated by Treff LaPlante in the above-referenced letter. 48. The Answer to Interrogatory No. 13 is deficient as it does not address, "what terms and conditions of the contract forced Defendant to define the terms and conditions for jthe] relationship; what issues or complaints Servolift may have had with Defendant, the identity of each witness with knowledge relative to the agreement; and each document which addresses Interrogatory 13. This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 49. Defendant's Second Set of Interrogatories: Interrogatory No. 14 states: "Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "If you fail to respond to this final request to consider formalizing our arrangement, then we will consider our relationship to have been terminated by you." Please state why the Defendant had any obligation to "respond to this final request to consider formalizing our arrangement." A complete answer should include what terms and conditions of the contract forced Defendant to formalize or change any terms and conditions of the agreement; what issues or complaints arose that made further "formalization" necessary; the identity of each witness with knowledge relative to the agreement; and each document which addresses Interrogatory 14." 50. Plaintiff's Answer to this Interrogatory was, "The oral agreement entered into by defendant and plaintiff in 2006 was not for any specific period of time. Termination of the agreement by either party was not subject to any conditions. As Plaintiff sought to formalize its relationship with its employees, defendant was provided with the option of either formalizing his relationship with Plaintiff or his relationship with Plaintiff would be terminated, as indicated by Treff LaPlante in the above-referenced letter." By not responding, Defendant did not accept the offer of formalizing his relationship with Plaintiff; therefore, he was terminated by Plaintiff." 51. The Answer to Interrogatory No. 14 is non-responsive and deficient as it does not address, the interrogatory question that asked, "why the Defendant had any obligation to "respond to this final request to consider formalizing our arrangement." Further, the Interrogatory stated that a complete answer should include what terms and conditions of the contract forced Defendant to formalize or change any terms and conditions of the agreement; what issues or complaints arose that made further "formalization" necessary; the identity of each witness with knowledge relative to the agreement; and each document which addresses Interrogatory 14." This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 52. Defendant's Second Set of Interrogatories: Interrogatory No. 15 states: "Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "If you fail to respond to this final request to consider formalizing our arrangement, then we will consider our relationship to have been terminated by you." Please state why the Plaintiff did not simply terminate the agreement with Defendant on the date the contract was signed between Servolift and Defendant keeping all of the funds generated from Servolift for themselves." 53. Plaintiff`s Answer to this Interrogatory was, "Plaintiff objects to this interrogatory on the ground that it is vague and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. " 54. The Answer to Interrogatory No. 15 is non-responsive and deficient. This interrogatory is certainly not vague, nor does it request either proprietary or confidential information or does it seek information that is not reasonably calculated to lead to the discovery of admissible evidence. The interrogatory was very simple and asked "Please state why the Plaintiff did not simply terminate the agreement with Defendant on the date the contract was signed between Servolift and Defendant keeping all of the funds generated from Servolift for themselves" and the Plaintiff should be required to answer the interrogatory. This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 55. Defendant's Second Set of Interrogatories: Interrogatory No. 16 states: "Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "If you fail to respond to this final request to consider formalizing our arrangement, then we will consider our relationship to have been terminated by you." Please state why the Plaintiff did not simply terminate the agreement with Defendant if they believed they had the right to on August 24, 2009." 56. Plaintiff's Answer to this Interrogatory was, "Plaintiff objects to this interrogatory on the ground that it seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing objection, the oral agreement entered into by the Defendant and Plaintiff in 2006 was not for any specific period of time. Termination of the agreement by either party was not subject to any condition. Plaintiff provided Defendant with the opportunity to formalize his relationship with Plaintiff or the relationship created by the oral agreement was to be terminated." 57. The Answer to Interrogatory No. 16 is non-responsive and deficient. This interrogatory does not seek information that is not reasonably calculated to lead to the discovery of admissible evidence. The interrogatory was very simple and asked "Please state why the Plaintiff did .not simply terminate the agreement with Defendant if they believed they had the right to on August 24, 2009." Plaintiff does not answer the interrogatory and Plaintiff should be required to answer the interrogatory. This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 58. Defendant's Second Set of Interrogatories: Interrogatory No. 17 states: "Exhibit A, Letter From Treff LaPlante to Defendant, dated August 24, 2009 states, "If you fail to respond to this final request to consider formalizing our arrangement, then we will consider our relationship to have been terminated by you." Please state why the Plaintiff waited until the filing of the Declaratory Complaint on February 9, 2010 by Rhoads and Sinon, attorneys for Plaintiff, before making the claim that Plaintiff "had the unfettered discretion to terminate the oral agreement with Defendant at will." A complete answer should include why Plaintiff would consider the "relationship to have been terminated by [Defendant];" what terms and conditions of the contract forced Defendant to formalize or change any terms and conditions of the agreement or else the agreement would be terminated due to inaction of the Defendant; what issues or complaints arose that made further "formalization' necessary; the identity of each witness with knowledge relative to the agreement; and each document which addresses Interrogatory 17." 59. Plaintiff's Answer to this Interrogatory was, "Plaintiff's Answer to this Interrogatory was, "Plaintiff objects to this interrogatory on the ground that it is not reasonably calculated to lead to the discovery of admissible evidence. Notwithstanding the foregoing objection, the oral agreement entered into by the Defendant and Plaintiff in 2006 was not for any specific period of time. Termination of the agreement by either party was not subject to any condition. Plaintiff provided Defendant with the opportunity to formalize his relationship with Plaintiff or the relationship created by the oral agreement was to be terminated. By not responding to this opportunity, Defendant did not choose to formalize his relationship with Plaintiff; thus, Plaintiff terminated its oral agreement with Defendant. Plaintiff's decisions to restructure its relationship with its employees to include more formal relationships was based on legitimate business reasons." 60. The Answer to Interrogatory No. 17 is non-responsive and deficient. This interrogatory does not seek information that is not reasonably calculated to lead to the discovery of admissible evidence. The interrogatory was very simple and asked "Please state why the Plaintiff waited until the filing of the Declaratory Complaint on February 9, 2010 by Rhoads and Sinon, attorneys for Plaintiff, before making the claim that Plaintiff "had the unfettered discretion to terminate the oral agreement with Defendant at will." It further went on to ask in part, why Plaintiff would consider the "relationship to have been terminated by [Defendant]; ' what terms and conditions of the contract forced Defendant to formalize or change any terms and conditions of the agreement or else the agreement would be terminated due to inaction of the Defendant; what issues or complaints arose that made further "formalization" necessary; the identity of each witness with knowledge relative to the agreement; and each document which addresses Interrogatory 17." Plaintiff once again does not answer an interrogatory and Plaintiff should be required to answer the interrogatory. This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 61. Plaintiff is the party requesting the Declaratory Judgment and accordingly has the burden of proof to show and present evidence as to Plaintiff's claims and further to provide information requested from Defendant in Defendant's First Set of Interrogatories. 62. As clearly demonstrated by Defendant, Plaintiff's objections to Answers to Defendant's First Set of Interrogatories are neither vague, overlybroad, unduly burdensome; seek information that is not reasonably calculated to lead to the discovery of admissible evidence; not reasonable in time or scope; nor is the information proprietary and or confidential in nature. 63. With respect to discovery, pursuant to Pa. R. Civ. P 4003.1, "[A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Clearly, Defendant is entitled to the answers to these interrogatories. 64. Plaintiff took over two and a half months to prepare these mostly deficient and non-responsive Answers to Defendant's Second Set of Interrogatories. Plaintiff has not supplied answers or documents requested by Defendant in full, Defendant is prejudiced by Plaintiff's willful disregard of the discovery rules as defendant is unable to review possible key evidence and move forward with additional discovery necessary to prepare his case. 65. This Honorable Court, pursuant to Pa. R. Civ. P 4019, has the authority and discretion to compel a party to respond to written discovery requests. The appropriate remedy for failure to comply with discovery requests is for this Honorable Court to grant Defendant's Motion to compel Plaintiff to serve answers and responses to Defendants discovery requests (all objections having been waived). WHEREFORE, Defendant, Raymond Spellman, respectfully requests that this Honorable Court enter an Order directing Plaintiff, Express Dynamics, LLC d/bja WorlcXpress, to serve complete and substantive answers and responses to Plaintiff's outstanding discovery within ten (10) days. CERTIFICATION OF SERVICE I hereby certify that on this ~~ day of October, 2010, a true and correct copy of the foregoing Rule to Show Cause and Defendants Motion to Compel Plaintiff Express Dynamics, LLC d/b/a WorkXpress Answers to Interrogatories was served by means of hand delivery or by United States Mail, first class, postage prepaid, upon the followings: Kelly H. Decker Rhoads & Sinon LLP Twelfth Floor One South Market Square PO Box 1146 PA 17108-1146 \J Raymond Spellman Raymond J Spellman ~ 327 Morris Avenue m~ ~ ~~ ~ ~ Boonton, New Jersey 07005 ~ ~ A -~ ~ ~ .~ ~ 973-335-8001 ~~ ~' ~~ Defendant ~ ~ ~ ~ '~ `~ =i ~~ ~,.~ EXPRESS DYNAMICS, LLC d/b/a IN THE COURT OF COMMON PLEAS E WORKXPRESS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, CIVIL ACTION -LAW v. No. 10-104 Civil RAYMOND SPELLMAN, DEFENDANT'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS TO Defendant. PLAINTIFF To: Robert J. Tribeck Rhoads & Sinon LLP Twelfth Floor One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa. R.Civ.P. 4009, as amended, to produce and permit the requesting party, to inspect, examine and copy any designated documents, including writings, drawings, graphs, charts, photographs, electronically created data, and other compilations of data from which information can be 1 obtained at the offices of Raymond Spellman, 327 Morns Avenue, Boonton, New Jersey 07005 not later than thirty (30) days after service of this request, the following documents. These Requests shall be continuing. If you or anyone acting on your behalf learns of additional documents responsive to this Request, you shall produce such document by Supplemental Response. Defendant hereby makes demand that the Plaintiffs answer the following Interrogatories pursuant to the Pennsylvania Rules of Civil Procedure 4001 et seq. These Interrogatories must be answered as provided in Pa. R.C.P. 4006 and the Answers must be served on all other parties within thirty (30) days after the Interrogatories are deemed served. DEFINITIONS AND INSTRUCTIONS (A) "You," "Plaintiff," and "your" refers to the person or persons to whom these Requests are propounded. (B) "And" and "or" shall be construed conjunctively and disjunctively so as to bring within the scope of this Request for Production any information which might otherwise be construed to be outside its scope. (C) The word "document" means any correspondence, emails, memoranda, inter-office communication, infra-office communication, agreement, minute, report, note, schedule, book of account, ledger, invoice, receipt, purchase order, pleading, questionnaire, contract, bill, check, draft, diary, log, proposal, bid, recording, telex, telegram, drawing, picture, table, graph, chart, map or survey, including the originals and working, handwritten drafts of all of the above and any copies thereof which are different from the original by way of interlineation or notation, including any transcript or summary of the foregoing and any other tangible date compilations from which information may be used, including word processor systems. (D) If you claim that the subject matter of a document or oral communication is privileged you are required to identify the document or communication by stating the following information: a. Its nature (e.g., letter, memorandum, tape recording, etc.); 2 b. Its date (or if it beazs no date, the date when it was prepazed); c. The name, address, employer and job position of the signer or signers (or if there is no signer, of the person who prepazed it); d. The name, address, employer and job position of the person, if any, to whom the document was sent; e. The name, address, employer and job position of each person known or believed to have originals of copies of the documents; or f. A brief statement of the subject matter of the document; and state each ground or basis on which you contend that the document or oral communication is privileged. (E) If you do not have possession, custody or control of a document request, but know who does have possession, custody or control, you aze required to identify the document and the person who has possession, custody or control in the manner requested in subparagraph (D) thereof. YOU ARE REQUESTED TO PRODUCE THE FOLLOWING DOCUMENTS: 1. Any and all documents which refer, relate to, pertain to, or define your agreement with Raymond Spellman. 2. Any and all documents which refer, relate to, pertain to, or define the specific terms of your agreement with Raymond Spellman. 3. Any and all documents which refer, relate to, pertain to, or define the specific terms and responsibilities of Plaintiff as it concerns Raymond Spellman. 4. Any and all documents which refer, relate to, pertain to, or define the specific terms and responsibilities of Plaintiff as it concerns Servolift. 5. Any and all documents which support your claim that the agreement between Raymond Spellman and Plaintiff was formed or ratified in Pennsylvania. 6. Any and all documents which evidence, refer, relate or pertain to your claim that termination of the agreement between the parties was not subject to any condition. 7. Any and all documents which evidence, refer, relate or pertain to your claim that the agreement between the parties was not for any specific period of time. 8. Any and all documents which evidence, refer, relate or pertain to your claim that the terms of the agreement could be changed at will by Plaintiff. 9. Any and all documents which evidence, refer, relate or pertain to your claim that Raymond Spellman was a VAR (Value Added Reseller) for Plaintiff. 3 10. Any and all documents which evidence, refer, relate or pertain to your claim that Raymond Spellman was an employee of Plaintiff. 11. Any and all documents in your possession that refute Raymond Spellman's position that the agreement was not terminable at will. 12. Any and all documents generated by Plaintiff in its normal course of business which state, evidence, refer, relate or contain the words "own the customer relationship" or "owns the customer relationship." 13. Any and all documents generated by Plaintiff in its normal course of business which state, evidence, refer, relate or contain the words "own the customer relationship" or "owns the customer relationship." 14. Any and all documents generated by Plaintiff in its normal course of business which state, evidence, refer, relate to payment to VAR's Agents, Partners after receipt of payment from end-user. 15. Any and all documents which refer, relate to, pertain to or define your relationship and contacts with Servolift, LLC or their employees or their agents, prior to June 1, 2005. 16. Any and all documents that refute Raymond Spellman's claims that WorkXpress' current relationship with Servolift is not solely the result of Defendant's efforts or connections. 17. Any and all documents that allows Plaintiff to Bill Servolift directly. 18. Any and all contract document between Plaintiff and Servolift from June 1, 2005 to present. 19. Any and all work, service or equipment proposals between Plaintiff and Servolift from June 1, 2005 to present. 20. Any and all of Plaintiff's banking deposit statement for all payments received from Servolift from June 1, 2005 to present. 21. Any and all technology service charges or expense reports attributable to Servolift from June 1, 2005 to present. 22. All documents identified or relied upon in answering Plaintiff's First and Second Set of Interrogatories. 23. Any and all exhibits you intend to use at the trial of this matter. 24. Any and all documents, diaries, planners, PDA files, personal notes, text messages, emails, calendars or journals that evidence meeting dates, agendas, meeting notes. 25. Any and all diaries, planners, PDA files, personal notes, text messages, emails, calendars or journals which you may have kept from the time your agreement with Plaintiff began to the present. 26. All statements, summaries of statements, transcripts of recorded statements or interviews, or any memoranda or transcripts of statements or interviews of any party, person or witness, or their agents or employees, relating to, referring to or in any way describing the allegations and events regarding the issues of this case, who have any 4 knowledge of the facts surrounding any of the matters, transactions or occurrences involved in this case. 27. Attached to each statement provided pursuant to the preceding request should be an explanation including: a. the name, address and occupation of the person who gave the statement, and of the person who obtained the statement and the date and time it was obtained; and b. the manner in which the statement was taken; i.e., electronic recording, written, oral, etc. 28. All documents which evidence, relate to, pertain to, support, or were created in an attempt to disprove the Defendants' claim's, including, but not limited to, diaries, notebooks, journals, calendars, appointment books, notes, correspondence, memoranda, and tape recordings. 29. All documents prepared by you, or by a representative, agent, or anyone acting on your behalf, except your attorneys, during an investigation of the allegations and events regazding the issues of this case, or prepazed in anticipation of litigation or trial of this matter. Such documents shall include any documents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions, or the opinions respecting the value or merit of the claim or respecting strategy or tactics. 30. All statements of any person(s) who will be called as witness at trial of this matter. 31. All demonstrative evidence which will be introduced or used at trial. 32. For each expert intended to be called as a witness at trial, all expert opinions, expert reports, expert summaries or other writings in your custody or control or in the custody or control of your attorneys, agents or representatives, which relate to the subject matter of this litigation and the proposed testimony of the prepazer of such opinion, report, summary or other writing. 33. A current Curriculum Vitae for each expert retained by you or your attorneys in connection with this case who will testify at trial. 34. All documents, including but not limited to, advertisements, circulars, brochures, pamphlets, leaflets, writings, and other such promotional items any expert witness you have retained for use at trial uses and has used in the past to promote his services as an expert witness. 35. All documents, diaries, correspondence or other drawings, sketches, diagrams, or writings in your custody or in the custody or control of your attorneys, which relate to the subject matter of this litigation. 36. Any and all documents, potential exhibits, or other tangible thing, including, but not limited to, electronic or video recordings, films, photographs, diagrams and charts, believed by you or anyone acting on your behalf to have potential probative value regarding your claims/defenses in this matter. Provide the name and address of the person presently having possession, custody or control of each such item. 5 37. Any and all documents which relate, in any way, to Defendant. 38. All correspondence relating to the Complaint, Answer, or Affirmative Defenses filed in this matter, including but not limited to correspondence between the parties to this litigation and any correspondence to third parties regarding the subject matter of this litigation. Boonton, NJ 07005 973-335-8001 6 327 Morris Avenue Raymond J Spellman 327 Moms Avenue Boonton, New Jersey 07005 973-335-8001 Defendant EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, ~+~+~~?TA~`?Y 419 S ! ~_ Yt:P~ ~ i .'-1 IN THE COURT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. CIVIL ACTION -LAW No. 10-1041 Civil RAYMOND J SPELLMAN, Defendant. DEFENDANT'S SUPPLEMENTAL MOTION TO COMPEL PLAINTIFF EXPRESS DYNAMICS. LLC d/b/a WORKXPRESS ANSWERS TO FIRST SET OF INTERROGATORIES PURSUANT TO PA.R.C.P 4019 NOW COMES, Defendant, Raymond Spellman and files the within Supplemental Motion to Compel Plaintiff Express Dynamics, LLC d/b/a Workxpress Answers to Interrogatories pursuant to Rule 4019(a)(1) of the Pennsylvania Rules of Civil Procedure, stating as follows: 1. Plaintiff Express Dynamics, LLC and WorkXpress, LLC ("WorkXpress") is a software development company currently located at 453 Lincoln Street, Carlisle, Pennsylvania 17013. 2. Defendant Raymond Spellman ("Spellman") is located at 327 Morris Avenue, Boonton, Morris County, New Jersey 07005. 3. Defendant entered into an oral agreement with Plaintiff that defined the sharing of revenues for Defendants customer Servolift, LLC ("Servolift") , located at 105 West Dewey Ave, Building B, Wharton, Morris County, New Jersey 07855. 4. Plaintiff, a Pennsylvania Limited Liability Company, was unaware of the New jersey based Servolift, and had no prior knowledge of their existence and no prior relationship with Servolift or their employees or their agents prior to Spellman's introduction of Treff LaPlante, Express Dynamics or WorkXpress to Servolift in 2005. 5. Defendant alleges that Plaintiff, with complete malice and in bad faith, filed the Complaint For Declaratory Judgment on February 9, 2010 when Plaintiff learned that a legal action against Plaintiff by Defendant to demand the monies owed Defendant from Plaintiff was imminent. Defendant alleges that Plaintiff filed the action in Pennsylvania for jurisdictional reasons as Plaintiff knows full well that the agreement between the parties was ratified in New Jersey making New Jersey the proper jurisdiction for this oral agreement. 6. This meritless and frivolous action, perpetrated on this Defendant and this Court by Plaintiff, is in bad faith and was conceived by Plaintiff as a way to deny Defendant money legally and rightfully earned, owed and due from Servolift. 7. Further, to date the Plaintiff has presented no proof to substantiate the allegations presented in the Complaint for Declaratory Judgment. 8. On March 5, 2010, seven months ago, Defendant served Plaintiff with Defendant's First Set of Interrogatories. 9. Plaintiff responded with its Answers and Objections which Defendant received on Apri15, 2010. 10. Defendant believes that Plaintiff's Answers to Defendant's First Set Of Interrogatories are incomplete and on or about May 6, 2010 Defendant improperly filed Defendant` s Preliminary Objections to Plaintiff's Answers to First Set of Interrogatories with this good court to compel Plaintiff to properly respond. Plaintiff acknowledges receipt of Defendants objections yet took no action to correct them. 11. On August 5, 2010 Defendant properly filed Defendant's Motion to Compel Plaintiff's Answers to Defendant's First Set of Interrogatories. 12. On August 19, 2010 Plaintiff, more than three months after first learning of Defendant's Objections, presented their argument in letter format, as to why their responses are "in fact responsive and permitted under the rules of the court." 13. Defendant finds no validity in Plaintiff's argument and files this Supplemental Motion to Compel Plaintiff Express Dynamics, LLC d/b/a WorkXpress Answer to First Set of Interrogatories. 14. Further, on July 6, 2010, Defendant served Plaintiff with Defendant's Second Set Of Interrogatories. 15. On August 10, 2010 Plaintiff responded through their attorney Kelly H. Decker of Rhoads &Sinon requesting a two week extension until August 24, 2010 to submit answers to Defendant's Second Set Of Interrogatories. 16. On or about September 20, nearly two and one half months later Plaintiff filed their Answers to Defendant's Second Set of Interrogatories. 17. Defendant has reviewed Plaintiff's Answers to Defendant's Second Set of Interrogatories and also finds Plaintiff's Answers to Defendant's Second Set of Interrogatories deficient and is filing a motion, concurrent with this motion, with this good court, to compel Answers. 18. Plaintiff has made serious claims and accusations, has requested this Declaratory Judgment from this court, and yet Plaintiff, having the burden of proof, and given the opportunity, has not demonstrated any evidence, writing, tape recording, email or any other evidence that substantiates Plaintiff's claims. Instead, Plaintiff has hired Rhoads & Sinon a high powered Pennsylvania law firm whose website boast over 531awyers. This firm makes objection after objection and list procedural error after procedural error but also has not provided any evidence to substantiate Plaintiff's claims. 19. Defendant alleges that the Plaintiff, unable to prove its claims, is simply trying to use expensive and time consuming legal tactics, objections and motions against a Pro Se Defendant who resides approximately 3 hours away for the court. 20. The court should see to it that Plaintiff, who has the burden of proof in this matter, fully and completely presents any and all of its evidence, as requested in Defendants First Set of Interrogatories to Plaintiff. SPECIFIC DEFICIENCIES 21. Defendant's First Set of Interrogatories: Interrogatory No. 8. states: "(a) Identify each person whom Plaintiff intends to rely upon at trial as an expert witness. (b) Set forth the substance of the facts and opinion to which each expert is expected to testify and a summary of the grounds for each opinion. (c) Set forth in detail, the educational background, work history, professional experience, professional association, or other material upon which the Plaintiff will rely to establish that each of the foregoing named individuals is an expert, and the field or area each such person is an expert. (d) Attach to Plaintiff's answers to these Interrogatories complete and true copies of all written reports rendered by each expert listed in the answers to these Interrogatories. If any of said reports were oral, set forth, in detail, the substance of each such report. If any written or oral expert reports are submitted subsequent to the date of the answer to these Interrogatories, complete and true copies of such reports or complete summaries of any such oral reports shall be served promptly upon Plaintiff." 22. Plaintiff's Answer to this Interrogatory was, "Plaintiff has not determined whether it will call an expert witness at trial in the above referenced matter. Plaintiff will supplement this request in a timely manner as applicable. " 23. The Answer to Interrogatory No. 8 is deficient in that the Plaintiff filed this Declaratory Judgment on February 9, 2010 and nearly eight months have passed since the Declaratory Judgment was filed and eight months is more than ample time for Plaintiff to determine what, if any expert witnesses would be called at trial and Plaintiff has had ample time to provide all information requested by Defendant in Interrogatory No. 8 subparts a-d. and this information should be provided. 24. Defendant's First Set of Interrogatories: Interrogatory No. 9. states: "List and attach to the answers to these Interrogatories true copies of all documents of any description whatsoever upon which Plaintiff may rely at the time of trial to establish or prove any part of Plaintiff's case or which Plaintiff may introduce into evidence for any purpose whatsoever at trial." 25. Plaintiff's Answer to this Interrogatory was, "Plaintiff has not determined whether it will call an expert witness at trial in the above referenced matter. Plaintiff will supplement this request in a timely manner as applicable. " 26. The Answer to Interrogatory No. 9 is deficient in that the Plaintiff filed this Declaratory judgment on February 9, 2010 and nearly eight months have passed since the Declaratory Judgment was filed and eight months is more than ample time for Plaintiff to determine what, if any documents of any description may rely at the time of trial to establish or prove any part of Plaintiff's case or which Plaintiff may introduce into evidence for any purpose whatsoever at trial and Plaintiff has had ample time to provide all documents requested by Defendant in Interrogatory No. 9. 27. Defendant's First Set of Interrogatories: Interrogatory No. 10. states: "List and attach to the answers to these Interrogatories true copies of federal, state and local tax returns tax returns from 2002 to 2010 for Treff LaPlante, Express Dynamics and WorkXpress. 28. Plaintiff's Answer to this Interrogatory was, "Plaintiff objects to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope." 29. The Answer to Interrogatory No. 10 is deficient in that the information request by Defendant is not overly broad, unduly burdensome nor does it seek information that is not reasonably calculated to lead to the discovery of admissible evidence. The relationship between Plaintiff and Defendant goes back to at least the founding of Express Dynamics, LLC which is on or about the year 2002 and certain information and events such as the financial condition of the Plaintiff is relevant to this case and federal, state and local tax returns tax returns from 2002 to 2010 could reasonably provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 30. Defendant's First Set of Interrogatories: Interrogatory No. 11. states "List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, employee, company or entity that was utilized in the development of Plaintiff's software from 2002 to 2010 and state: a) the dates, times and location of where each person or company worked; b) the type of work the person or company performed; c) how the person or company was compensated; d) the amount paid or bartered as compensation; e) the form of payment or barter; f) when payment was made; g) complete educational and technical background. h) whether the person, employee, company or entity is stilled employed or provides service and if not why they no longer are employed or provide services." 31. Plaintiff's Answer to this Interrogatory was, "Plaintiff object to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Moreover, Plaintiff objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. Notwithstanding the foregoing and with full reservation of rights, Plaintiff lists the following employees, who may be contacted through the undersigned counsel. Drew McLain (lead developer), Brian Bransteitter (senior developer) and James Armes (senior developer)." 32. The Answer to Interrogatory No. 11 is deficient in that the information request by Defendant is not overly broad, unduly burdensome nor does it seek information that is not reasonably calculated to lead to the discovery of admissible evidence, nor does it seek information that is proprietary and confidential. The relationship between Defendant and Plaintiff and Plaintiff's employees, agents and partners and goes back to at least the founding of Express Dynamics, LLC which is about the year 2002 and employee's, company's or any other entity that was utilized in the development of Plaintiff's software is relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 33. Defendant's First Set of Interrogatories: Interrogatory No. 12. states "List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, employee, company or entity that was utilized in the sales and/or marketing of Plaintiff`s software from 2002 to 2010 and state: a) the dates, times and location of where each person or company worked; b) the type of work the person or company performed; c) how the person or company was compensated; d) the amount paid or bartered as compensation; e) the form of payment or barter; f) when payment was made; g) complete educational and technical background. h) whether the person, employee, company or entity is stilled employed or provides service and if not why they no longer are employed or provide services." 34. Plaintiff's Answer to this Interrogatory was, "Plaintiff object to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Plaintiff objects to this interrogatory on the basis that the information requested that is proprietary on the basis that the information requested consists of information that is proprietary and confidential in nature. Notwithstanding the foregoing and with full reservation of rights, Plaintiff identifies the following individuals who currently conduct sales and/or marketing activities for WorkXpress and who may be contacted through the undersigned counsel. Treff LaPlant (Sales Team Leader, Jacob Burns (Marketing)." 35. The Answer to Interrogatory No. 12 is deficient in that the information requested by Defendant is not overly broad, unduly burdensome nor does it seek information that is not reasonably calculated to lead to the discovery of admissible evidence, nor does it seek information that is proprietary and or confidential. The relationship between Defendant and Plaintiff and Plaintiff's employees, agents and partners and goes back to at least the founding of Express Dynamics, LLC which is about the year 2002 and employee's, company's or any other entity that was utilized in the sales and marketing of Plaintiff's software is relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 36. Defendant's First Set of Interrogatories: Interrogatory No. 13. states, "List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, company or entity that is or was classified as a VAR, Agent or Partner of Plaintiff's software from 2002 to 2010 and state: a) the dates, times and location of where each person or company worked; b) the type of work the person or company performed; c) how the person or company was compensated; d) the amount paid or bartered as compensation; e) the form of payment or barter; f) when payment was made." 37. Plaintiff's Answer to this Interrogatory was, "Plaintiff object to this interrogatory on the ground that it is overly broad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and Defendant entered into an agreement. Plaintiff further objects to this interrogatory on the basis that the information requested is proprietary and confidential in nature. Notwithstanding the foregoing and with full reservation of rights, Plaintiff identifies the following individuals who currently conduct sales and/or marketing activities for WorkXpress and who may be contacted through the undersigned counsel. Treff LaPlant (Sales Team Leader, Jacob Burns (Marketing)." 38. The Answer to Interrogatory No. 13 is deficient in that the information request by Defendant is not overly broad, unduly burdensome nor does it seek information that is not reasonably calculated to lead to the discovery of admissible evidence, nor does it seek information that is proprietary and or confidential. Plaintiff, in its Complaint For Declaratory judgment y[ 7 states, "In conjunction with its business, WorkXpress has utilized the services of value added resellers ("VAR's), including Defendant." In y[ 16 Plaintiff states, "in early 2009, WorkXpress decided to alter the relationship with its VAR's and other agents, including defendant." If that is the case, Defendant should be entitled to all information requested in Interrogatory No. 13 so that Defendant may, depose or otherwise question Plaintiff's VAR's or other agents to corroborate Plaintiff's statement as this information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. For the record, Defendant denies being a VAR for WorkXpress. 39. Defendant's First Set of Interrogatories: Interrogatory No. 14. states, "State whether any agreement or agreements, written or oral, were made between the Plaintiff and Defendant. Provide an exact description of such agreements which includes: a)What parties, entities, persons or companies where involved in the agreements; b) the time, date and place the agreements took place and who was present; c) every term and condition of the agreements; d) the responsibilities of all parties, entities, persons or companies involved in the agreements; e) how revenues were to be shared amongst the parties, entities, persons or companies involved in the agreements; f) attach any copies of such agreements." 40. Plaintiff's Answer to this Interrogatory was, "In 2006, Plaintiff and Defendant entered into an oral agreement whereby defendant would provide maintenance of the customer relationship and customer support to the end-user of WorkXpress software. In exchange, defendant received a 40% commission. The oral agreement was not for any specific period of time. The Termination of the agreement by either party was not subject to any condition." 41. The Answer to Interrogatory No. 14 is mostly non-responsive and deficient. Although Plaintiff admits to an oral agreement with Defendant much of the rest of the Answer is vague or non-responsive. 42. Interrogatory No. 14 asks "the time, date and place the agreements took place and who was present?" Plaintiff`s answer states the year, "2006." Plaintiff fails to state the time or date or place that the agreement between the two parties was ratified. This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 43. Interrogatory No. 14 asks, "every term and condition of the agreements and the responsibilities of all parties, entities, persons or companies involved in the agreements? Plaintiff's answer states, "defendant would provide maintenance of the customer relationship and customer support to the end- user of WorkXpress software. In exchange, defendant received a 40% commission. The oral agreement was not for any specific period of time. The Termination of the agreement by either party was not subject to any condition." Plaintiff's answer is deficient as it does not state every term and condition of the agreement as it certainly does not address Plaintiff's responsibility. Further, it is unclear weather Plaintiff is stating that the oral agreement stated that it, "was not for any specific period of time or that the termination of the agreement by either party was not subject to any condition," or if that is simply Plaintiff's opinion. 44. Defendant's First Set of Interrogatories: Interrogatory No. 16. states: "State the exact dates that all verbal and written VAR or Agent agreements ratified by Treff LaPlante, Express Dynamics and/or WorkXpress were ratified." 45. Plaintiff's Answer to this Interrogatory was, "Plaintiff objects to this interrogatory on the ground that it is vague, ambiguous, and unintelligible and on the ground that it is overlybroad, unduly burdensome and seeks information that is not reasonably calculated to lead to the discovery of admissible evidence. Plaintiff further objects to this interrogatory on the ground that it is not reasonable in time or scope and precedes 2006, when Plaintiff and defendant entered into an agreement. Plaintiff further objects to this on interrogatory on the basis that the information requested is proprietary and confidential in nature. " 46. The Answer to Interrogatory No. 16 is completely deficient. The interrogatory is neither vague, ambiguous nor unintelligible. It is a straight forward interrogatory. Further, it is not overlybroad nor unduly burdensome as Defendant believes that Plaintiff has few, if any, verbal or written agreements with VAR's, agents or partners. The relationship between Plaintiff and Defendant goes back to at least the founding of Express Dynamics, LLC which is about the year 2002 and certain information, events or relationships such as past and present VAR's, agents or partners is relevant to this case and could reasonably provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 47. Defendant's First Set of Interrogatories: Interrogatory No. 17. states: "Identify in detail each and every item of tangible property which Plaintiff may use at the time of trial to establish or prove any part of Plaintiff's case or which Plaintiff may introduce into evidence for any purpose whatsoever at the time of trial. With respect to each such item of tangible property, identify any person who has custody of such item and the present location where such item may be inspected." 48. Plaintiff`s Answer to this Interrogatory was, "Plaintiff has not determined what, if any, item of tangible property it may us at the time of trial. Plaintiff will supplement this request in a timely manner as applicable. " 49. The Answer to Interrogatory No. 17 is deficient in that the Plaintiff filed this Declaratory judgment on February 9, 2010 and nearly eight months have passed since the Declaratory Judgment was filed and eight months is more than ample time for Plaintiff to determine what, if any documents of any description may rely at the time of trial to establish or prove any part of Plaintiff's case or which Plaintiff may introduce into evidence for any purpose whatsoever at trial and Plaintiff has had ample time to provide all documents requested by Defendant in Interrogatory No. 17. 50. Defendant's First Set of Interrogatories: Interrogatory No. 17. states: "With respect to any writing or any type of tangible property which Plaintiff does not intend to produce at the time of trial, but where Plaintiff may produce testimony or other evidence representing the nature, contents, or characteristics or such writing or item of tangible property, set forth: a) a detailed description of each such writing or item of tangible property; b) the present location of each such item; c) the name and address of the person who has custody of each such item; and d) with respect to each such writing or item which has been destroyed or is no longer in existence, a detailed description of the reason why each such item is no longer in existence and the identities of all persons who may be relied upon by Plaintiff at the time of trial to establish the existence, nature, contents or characteristics of such writing or item." 51. Plaintiff's Answer to this Interrogatory was, "Plaintiff has not determined what, if any, item of tangible property it may us at the time of trial. Plaintiff will supplement this request in a timely manner as applicable. " 52. The Answer to Interrogatory No. 18 is deficient in that the Plaintiff filed this Declaratory Judgment on February 9, 2010 and nearly eight months have passed since the Declaratory Judgment was filed and eight months is more than ample time for Plaintiff to determine what, if any documents of any description may rely at the time of trial to establish or prove any part of Plaintiff's case or which Plaintiff may introduce into evidence for any purpose whatsoever at trial and Plaintiff has had ample time to provide all documents requested by Defendant in Interrogatory No. 18. 53. Plaintiff claims that admissions were made in connection with the subject matter of this action. In Defendant's First Set of Interrogatories: Interrogatory No. 20. states: "If the answer to the preceding interrogatory is in the affirmative, set forth as to each such admission: a} the identity of the person who made the admission; b) the date, time and place when the admission was made; c) the identity of the person to whom the admission was made; d} the identity of each person present at the time the admission was made; e) the identity of each person, other than persons named previously in answers to this Interrogatory, having personal knowledge of the admission; f) the complete substance and content of the admission; and g) if the admission is contained in a document, or if any document refers or relates to the admission, identify the document and attach hereto a true copy thereof. 54. Plaintiff's Answer to this Interrogatory was, "defendant states that it is neither a VAR nor agent of Plaintiff. 55. The Answer to Interrogatory No. 20 is mostly non-responsive and deficient. Although Plaintiff states that "Defendant made the statement that he is neither a VAR nor an agent of Plaintiff," they fail to address the rest of Interrogatory No. 20. 56. The Plaintiff fails to identify in Interrogatory No. 20, "the date, time and place when the admission was made; the identity of each person present at the time the admission was made; the identity of each person, other than persons named previously in answers to this Interrogatory, having personal knowledge of the admission; the complete substance and content of the admission; and if the admission is contained in a document, or if any document refers or relates to the admission, identify the document and attach hereto a true copy thereof. This information would be relevant to this case and could provide admissible evidence to be used at trial and Defendant could be prejudiced should this information not be provided. 57. Plaintiff is the party requesting the Declaratory Judgment and accordingly has the burden of proof to show and present evidence as to Plaintiff's claims and further to provide information requested from Defendant in Defendant's First Set of Interrogatories. 58. As clearly demonstrated by Defendant, Plaintiff's objections to Answers to Defendant's First Set of Interrogatories are neither overlybroad, unduly burdensome; seek information that is not reasonably calculated to lead to the discovery of admissible evidence; not reasonable in time or scope; nor is the information proprietary and or confidential in nature. 59. With respect to discovery, pursuant to Pa. R. Civ. P 4003.1, "[A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Clearly, Defendant is entitled to the answers to these interrogatories. 60. On May 6, 2010 Defendant made Plaintiff aware of his objections to Plaintiff's Answers to Defendant's First set of Interrogatories when Defendant improperly filed Preliminary Objections to Plaintiff' Answers to Defendants First Set of Interrogatories. 61. After sending the May 6, 2010 objections to Plaintiff's Answers to Defendant's First Set of Interrogatories, Defendant did not receive any communications from Plaintiff addressing Defendant's objection for more than three months and did not request additional time or otherwise explaining why they did not fully and completely respond to Defendant's First Set of Interrogatories. 62. Therefore, having notified Plaintiff of Defendant's objection to Plaintiff's Answers to Defendant's First Set of Interrogatories and having received no response from Plaintiff, nor has Plaintiff supplied the information requested in full, Defendant is prejudiced by Plaintiff's willful disregard of the discovery rules as he is unable to review possibly key evidence and move forward with additional discovery necessary to prepare his case. 63. This Honorable Court, pursuant to Pa. R. Civ. P 4019, has the authority and discretion to compel a party to respond to written discovery requests. The appropriate remedy for failure to comply with discovery requests is for this Honorable Court to grant Defendant's Motion to compel Plaintiff to serve answers and responses to Defendants discovery requests (all objections having been waived). WHEREFORE, Defendant, Raymond Spellman, respectfully requests that this Honorable Court enter an Order directing Plaintiff, Express Dynamics, LLC dib/a WorkXpress, to serve complete and substantive answers and responses to Plaintiff's outstanding discovery within ten (10) days. CA ~A L PRAECIPE FOR LISTING CASE FOR ARGUMENT Must be typed and submitted in Triplicate ~ ,,~, ~a ~ c~ 'rt -~ ~ o` --i TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next ~ rn r~i Argument Court.) ~..'~. -~ ~ Express Dynamics, LLC d/b/ a WorkXpress ~ ~ '~ ° ~ -'~' c-~ VS. ~;r .. a i't'i Raymond Spellman _ ,~ ~~~ No. 1041, 2010 Term T` 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Supplemental Motion to Compel Plaintiff s Answers to First Set of Interrogatories 2. Identify all counsel who will argue cases: a. for plaintiffs: Kelly Decker, ESQ., Rhoads & Sinon LLP,1 So. Market Sqr, Harrisburg, PA 17101 b. for defendants: Raymond Spellman, Defendant, 327 Morns Avenue, Boonton, NJ 07005 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 15, 2010 at 3:30 pm in Courtroom 4 Date: 1~ 1 ~_ o ~ o INSTRUCTIONS: 1.Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary} after the case is relisted. Raymond J Spellman Defendant ~ j~~ PRAECIPE FOR LISTING CASE FOR ARGUMENT Must be typed and submitted in Triplicate TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for tl one ~ .,~ Argument Court.) -~~ o h ~--i --------------------------------------------------------------- c° 'Tt Express Dynamics, LLC d/b/a WorkXpress "~ ~ ~ ~ vs. ~ ~ -~, ~ ~ -n Raymond Spellman - ° ._.. No. 1041, 2010 Te>~ A _., 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to ,~- complaint, etc.): Defendant's Motion to Compel PlaintifYs Answers to Second Set of Interrogatories 2. Identify all counsel who will argue cases: a. for plaintiffs: Kelly Decker, ESQ., Rhoads & Sinon LLP,1 So. Market Sqr, Harrisburg, PA 17101 b. for defendants: Raymond Spellman, Defendant, 327 Morns Avenue, Boonton, NJ 07005 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: December 15, 2010 at 3:30 pm in Courtroom 4 Raymond J Spellman ~O' ~ / Defendant Date: ~O f (~ INSTRUCTIONS: 1.Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. t .- Raymond J Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 Defendant F~~.EO-o~~~cE ~~= fiE ~R~TF#~*~OTNRY 240 QCT -8 P~ 2~ 1 ~: ~Ua ~BERLA~d~ CQfc~~fi ~' EXPRESS DYNAMICS, LLC d/b/a IN THE COURT OF COMMON PLEASE WORKXPRESS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. CNIL ACTION -LAW No. 10-1041 Civil RAYMOND SPELLMAN, Defendant. To: Kelly Decker Rhoads & Sinon LLP Twelfth Floor One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 DEFENDANT'S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa. R.Civ.P. 4009, as amended, to produce and permit the requesting party, to inspect, examine and copy any designated documents, including writings, drawings, graphs, charts, photographs, 2 electronically created data, and other compilations of data from which information can be obtained at the offices of Raymond Spellman, 327 Morris Avenue, Boonton, New Jersey 07005 not later than thirty (30) days after service of this request, the following documents. These Requests shall be continuing. If you or anyone acting on your behalf learns of additional documents responsive to this Request, you shall produce such document by Supplemental Response. Defendant hereby makes demand that the Plaintiffs answer the following Interrogatories pursuant to the Pennsylvania Rules of Civil Procedure 4001 et seq. These Interrogatories must be answered as provided in Pa. R.C.P. 4006 and the Answers must be served on all other parties within thirty (30) days after the Interrogatories are deemed served. DEFINITIONS AND INSTRUCTIONS (A) "You," "Plaintiff," and "your" refers to the person or persons to whom these Requests are propounded. (B) "And" and "or" shall be construed conjunctively and disjunctively so as to bring within the scope of this Request for Production any information which might otherwise be construed to be outside its scope. (C) "Servolift" refers to Servolitt, LLC a New Jersey Limited Liability Company, located at 105 West Dewey Ave, Building B, Wharton, Morris County, New Jersey 07855. (D) The word "document" means any correspondence, emails, memoranda, inter-office communication, infra-office conununication, agreement, minute, report, note, schedule, book of account, ledger, invoice, receipt, purchase order, pleading, questionnaire, contract, bill, check, draft, diary, log, proposal, bid, recording, telex, telegram, drawing, picture, table, graph, chart, map or survey, including the originals and working, handwritten drafts of all of the above and any copies thereof which are different from the original by way of interlineation or notation, including any transcript or sumn2ary of the foregoing and any other tangible date compilations from which information may be used, including word processor systems. (E) If you claim that the subject matter of a document or oral communication is privileged you are required to identify the document or communication by stating the following information: a. Its nature (e.g., letter, memorandum, tape recording, etc.); b. Its date an example would be Month, Day, Year (or if it bears no date, the date when it was prepared); c. The name, address, employer and job position of the signer or signers (or if there is no signer, of the person who prepared it); d. The name, address, employer and job position of the person, if any, to whom the document was sent; e. The name, address, employer and job position of each person known or believed to have originals of copies of the documents; or f. A brief statement of the subject matter of the document; and state each ground or basis on which you contend that the document or oral communication is privileged. (F) If you do not have possession, custody or control of a document request, but know who does have possession, custody or control, you are required to identify the document and the person who has possession, custody or control in the manner requested in subparagraph (E) thereof. YOU ARE REQUESTED TO PRODUCE THE FOLLOWING DOCUMENTS: 1. Any and all documents which refer, relate to, pertain to, or define your agreement with Raymond Spellman. 2. Any and all documents which refer, relate to, pertain to, or define the specific terms of your agreement with Raymond Spellman. 3. Any and all documents which refer, relate to, pertain to, or define the specific terms and responsibilities of Plaintiff as it concerns your agreement with Raymond Spellman. 4. Any and all documents which refer, relate to, pertain to, or define the specific terms and responsibilities of Plaintiff as it concerns your agreement with Servolift. 4 5. Any and all documents which support your claim that the agreement between Raymond Spellman and Plaintiff was formed in Pennsylvania. 6. Any and all documents which refer, relate to, pertain to, or define your claim that termination of the agreement between you and Raymond Spellman was not subject to any condition. 7. Any and all documents which refer, relate to, pertain to, or define your claim that the agreement between you and Raymond Spellman was not for any specific period of time. 8. Any and all documents which refer, relate to, pertain to, or define your claim that the terms of the agreement between you and Raymond Spellman could be changed at will by Plaintiff. 9. Any and all documents which refer, relate to, pertain to, or define your claim that Raymond Spellman was a VAR (Value Added Reseller) for Plaintiff. 10. Any and ail documents which refer, relate to, pertain to, or define your claim that Raymond Spellman was an agent for Plaintiff. 11. Any and all documents which refer, relate to, pertain to, or define your claim that Raymond Spellman was an employee of Plaintiff. 12. Any and all documents in your possession that refute Raymond Spellrnan's position that the agreement between you and Raymond Spellman was not terminable at will. 13. Any and alI documents generated by Plaintiff, in its normal course of business, which state, evidence, refer, relate or contain the words "own the customer relationship" or "owns the customer relationship." 14. Any and all documents generated by Plaintiff, in its normal course of business ,which refer, relate to, pertain to, or define payment to VAR's Agents, Partners after receipt of payment from end-user. 15. Any and all documents which refer, relate to, pertain to or define your relationship and contacts with Servolift, LLC or their employees or their agents, prior to June 1, 2005. 16. Any and all documents which refer, relate to, pertain to or define your relationship and contacts with Servolift, LLC or their employees or their agents, after to June 1, 2005. 17. Any and all contract documents written between Plaintiff and Servolift from June 1, 2005 to present. 18. Any and all work, service or equipment proposals between Plaintiff and Servolift from June 1, 2005 to present. 19. Any and all documents that refute Raymond Spellman's claims that Plaintiff's current relationship with Seivolift is not solely the result of Defendant's efforts or connections. 20. Any and all documents which refer, relate to, pertain to or define any proposed change in the relationship between Plaintiff and Defendant from June 1, 2010 to present. 5 21. Any and all documents which refer, relate to, pertain to or define a proposed change in the relationship between Plaintiff and Defendant that could reduce Spellman's share of the Servolift revenues from 40% to 8% from June 1, 2010 to present.. 22. Any and all documents written between Plaintiff' and Defendant that permits Plaintiff to invoice Servolift directly. 23. Any and all documents written between Plaintiff and Defendant that permits Plaintiff to propose the sale of goods or services directly to Servolift. 24. Any and all of Plaintiff's banking deposit statements that evidence all payments received from Servolift from June 1, 2005 to present. Any non Servolift payments or any other non-related information found on these documents may be removed by blackening or whiting out. 25. Any and all technology service charges or expense reports attributable to Servolift from June 1, 2005 to present. 26. All documents identified or relied upon by Plaintiff s in answering Defendants Third Set of Interrogatories to Plaintiff. 27. Any and all exhibits you intend to use at the trial of this matter. 28. Any and all documents, diaries, planners, PDA files, personal notes, text messages, emails, calendars or journals that evidence meeting dates between Plaintiff and Defendant from June 1, 2005 to present. 29. Any and all documents, diaries, planners, PDA files, personal notes, text messages, emails, calendars or journals that evidence meeting dates between Plaintiff and Servolift from June 1, 2005 to present. 30. All documents which evidence, relate to, pertain to, support, or were created in an attempt to disprove the Defendants' claim's, including, but not Limited to, diaries, notebooks, journals, calendars, appointment books, notes, correspondence, memoranda, and tape recordings. 31. All documents prepared ~~~ you, or by a representative, agent, or anyone acting on your behalf, except your attorneys, during an investigation of the allegations and events regarding the issues of this case, or prepared in anticipation of litigation or trial of this matter. Such documents shall include any documents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions, or the opinions respecting the value or merit of the claim or respecting strategy or tactics. 32. All statements of any person(s) who will be called as witness at trial of this matter. 33. All demonstrative evidence which will be introduced or used at trial. 34. A11 documents, diaries, coi7•espondence or other drawings, sketches, diagrams, or writings in your custody or in the custody or control of your attorneys, which relate to the subject matter of this litigation. 6 35. Any and all documents, potential exhibits, or other tangible thing, including, but not limited to, electronic or video recordings, films, photographs, diagrams and charts, believed by you or anyone acting on your behalf to have potential probative value regarding your claims/defenses in this matter. Provide the name and address of the person presently having possession, custody or control of each such item. 36. Any and all documents which relate, in any way, to Defendant. 37. All correspondence relating to the Complaint, Answer, or Affirmative Defenses filed in this matter, including but not limited to correspondence between the parties to this litigation and any correspondence to third parties regarding the subject matter of this litigation. 7 327 Morris Avenue Boonton, NJ 07005 973-335-8001 Raymond J Spellman 327 Moms Avenue Boonton, New Jersey 07005 973-335-8001 Defendant EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, FfLED-OFFfCE GF THE PR~THQ'~JT~~v 201 OAT -8 P~ 2~ ~ C(~M~EFL~~~f; CG(,~h 1 ~° IN THE COURT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYLVANIA Plaintiil', v. CIVIL ACTION -LAW No. 10-1041 Civil RAYMOND SPELLMAN, Defendant. To: Kelly Decker Rhoads & Sinon LLP Twelfth Floor One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 DEFENDANT'S THIRD SET OF INTERROGATORIES TO PLAINTIFF Defendant hereby makes demand that the Plaintiffs answer the following Interrogatories pursuant to the Pennsylvania Rules of Civil Procedure 4001 et seq. These Interrogatories must be answered as provided in Pa. R.C.P. 4006 and the Answers must be served on all other parties within thirty (30) days after the Interrogatories are deemed served. 1 DEMAND is hereby made by Defendant RAYMOND J SPELLMAN, for answers, under oath or certification, to the following Interrogatories within the time and in the manner prescribed by the rules of this Court. SPELLMAN Dated: October 8, 2010 These Interrogatories are deemed to be continuing as to require the filing of Supplemental Answers promptly in the event Plaintiff learns additional facts not set forth in its original Answers or discover that information provided in the Answers is erroneous. Such Supplemental Answers may be filed from time to time, but not later than 30 days after such further information is received, pursuant to Pa. R.C.P. 4007.4. These Interrogatories are addressed to you as a party to this action; your answers shall be based upon information known to you or in the possession, custody or control of you, your attorney or other representative acting on your behalf whether in preparation for litigation or otherwise. These Interrogatories must be answered completely and specifically by you in writing and must be verified. If you object to or otherwise decline to answer any portion of an Interrogatory, please provide all information called for by that portion of the Interrogatory to which you do not object or to which you do not decline to answer. For those portions of an Interrogatory to which you object or to which you do not decline to answer, state the reason for such objection or declination. The fact that investigation is continuing or that discovery is not complete shall not be used as an excuse for failure to answer 2 each interrogatory as completely as possible. The omission of any name, fact, or other item of information from the Answers shall be deemed a representation that such name, fact, or other item was not known to Plaintiffs, their counsel, or other representatives at the time of service of the answers. DEFINITIONS As used herein the following terms shall have the meanings indicated: "DEFENDANT" means RAYMOND SPELLMAN "PLAINTIFF," "you" or "your", unless otherwise stated, means EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, its employees, agents, representatives, attorneys, etc. "SERVOLIFT" means Servolift, LLC a New Jersey Limited Liability Company, located at 105 West Dewey Ave, Building B, Wharton, Morris County, New Jersey 07855 and its employees, agents or representatives. "DOCUMENT": shall mean the original and any copy, regardless of origin or location, of any book, pamphlet, periodical, letter, memorandum, telegram, report, record, study, handwritten note, working paper, chart, photograph, index, tape, data sheet or data processing card or any other written, recorded, transcribed, punched, taped, filmed or graphic matter, however produced or reproduced, to which you have or had access. "PERSON", "PERSONS", "PEOPLE" and "INDIVIDUAL": shall mean any natural person, together with all firms, companies, corporations, partnerships, proprietorships, joint ventures, organizations, groups of natural persons or other associations or entities separately identifiable whether or not such associations or entities have a separate legal existence in their own right. "INCLUDING" means including but not limited to. 3 "COMMUNICATION" or "COMMUNICATIONS": shall mean any and all inquiries, discussions, conferences conversations, negotiations, agreements, meetings, interviews, telephone conversations, letters, correspondence, notes, telegrams, facsimiles, electronic mail, memoranda, or other forms of communications, including but not limited to both oral and written communications. "IDENTIFY," "IDENTIFYING" AND "IDENTIFICATION": When used in reference to a person means to provide an identification sufficient to notice a deposition of such person and to serve such person with process to require his or her attendance at a place of examination and shall include, without limitation, his or her full name, present or last known address, present or last known business affiliation, home and business telephone number, title or occupation, each of his or her positions during the applicable period of time covered by any answer referring to such person and relationship, if any, to the Plaintiff. "IDENTIFY," "IDENTIFYING" AND "IDENTIFICATION": When used in reference to a corporation shall mean state its full name and the address of its principal office. "IDENTIFY," "IDENTIFYING" AND "IDENTIFICATION": When used in reference to a writing or document mean to give a sufficient characterization of such writing or document to properly identify it in a request to produce and shall include, without limitation, the following information with respect to teach such document: 1. The date appe~•ing on such document, and if it has no date, the answer shall so state and shall give the date or approximate date such document was prepared; 2. The identity or descriptive code number, file number, title or label of such document; 3. The general nature and description of such document, and if it was not signed, the answer shall so state slid shall give the name of the person or persons who prepazed it; 4. The names of the person(s) to whom such document was addressed and the name of each person other than such addressee to whom such document or copies of it, were given or sent; 4 5. The name(s) of the person(s) having present possession, custody, or control of such document(s); and 6. Whether or not any draft, copy or reproduction of such document contains any postscripts, notations, changes or addendum not appearing on the document itself, and if so, the answer shall give the description of each such draft, copy or reproduction. INSTRUCTIONS Documents aze to be labeled to indicate the interrogatory to which they respond. In order to simplify the issues and resolve as many matters of fact as possible before hearing, if, following a reasonable and thorough investigation using due diligence, you are unable to answer any interrogatory, or any part thereof, in full, because sufficient information is not available to you, answer the interrogatory to the maximum extent possible, including any knowledge or belief you have concerning the unanswered portion thereof and the facts upon which such knowledge or belief is based. In addition, state what you did to locate the missing information and why that information is not available to you. When an exact answer to an interrogatory is not known, state the best estimate available, state that it is an estimate, and state the basis for such estimate. If documents once in your possession or under your control are requested or are the subject of an interrogatory, and such documents are no longer in your possession or under your control, state when such documents were must recently in your possession or under your control, and what disposition was made of them, including identification of the person now in possession of or exercising control over such documents. If the documents were destroyed, state when and where they were destroyed, and identify the person or persons who directed their destruction. If you withhold information, based on a claim that such information is privileged, you must (1) state the exact nature of the privilege you are claiming, and (2) support your claim by describing the nature of the information you are witl~liolding. All of the following interrogatories shall be continuing in nature and you must supplement your answers as additional information becomes known or available to you. IF ANY INTERROGATORY OR REQUEST IS OBJECTIONABLE, PLEASE CALL DEFENDANT BEFORE OBJECTING, IN ORDER TO ATTEMPT TO NARROW THE QUESTION OR AVOID THE OBJECTIONABLE PORTION OR ASPECT. INTERROGATORY l . Identify your full mine, address, your employer's name and address and title or position of the person answering these Interrogatories on behalf of Plaintiff's and state the authority vested in said individual to answer same. In the event that different persons are answering specific questions contained in these sets of interrogatories, please set forth the information requested in this question under that answer provided for each question below. 2. List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, employee, company or entity that was utilized in the development of Plaintiff s software from 2005 to present. 3. List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, employee, company or entity that was utilized in the sales and/or marketing of Plaintiff's software from 2005 to present. 6 4. List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, company or entity that is or was classified as a VAR, Agent or Partner of Plaintiff's from 2005 to present. S. State with a yes or no answer if Plaintiff had a relationship with Servolift prior to June 1, 2005. 6. If the answer to Interrogatory 5 is yes please describe your relationship with Servolift prior to June 1, 2005. 7. State with a yes or no answer if Raymond Spellman made the initial introduction between Plaintiff and Servolift as it concerns the software contract between Plaintiff and Servolift. 8. State with a yes or no answer whether Raymond Spellman provided marketing and sales services of Plaintiff's software product, service and capability to Servolift in 2005 and 2006. 7 9. State the date, time and location that the initial sales presentation of Plaintiff s software product, service and capability was presented to Servolift. 10. State the exact date (defined as month, day and year and an example would be: October 8, 2010), time (defined as hour and minute and an example would be 8:15 PM EST; and if an exact time can not be determined state a more broad time frame such as an event and an example of an event could be - "after the meeting, " "before the presentation ") and location (defined as street name and number, city and state or if an exact location can not be determined state a more broad location such as, "in the lobby of the Plainf eld Hotel, " or "Mr. Smith's office. ") where the agreement between Raymond Spellman and Plaintiff was reached. 11. State all of the terms and conditions of the agreement between Raymond Spellman and Plaintiff. 12. Concerning the agreement between Raymond Spellman and Plaintiff state what roles andlor responsibilities Plaintiff was to perform for Servolift. 8 13. Concerning the agreement between Raymond Spellman and Plaintiff state what roles and/or responsibilities Raymond Spellman was to perform for Servolift. 14. State with a yes or no answer whether at any time during the oral agreement between Raymond Spellman and Plaintiff that the parties discussed that, "(the oral agreement) has been terminable at the will of either party." (Quote references Complaint for Declaratory Judgment ¶ 12). 15. State with a yes or no answer whether Raymond Spellran agreed that the agreement between Defendant and Plaintiff was cancelable "at the will of either party." 16. If the answer to Interrogatory 1 S is yes, explain why Plaintiff did not terminate the agreement with Defendant on the date the contract was signed between Servolift and Defendant, keeping all of the funds generated from Servolift for Plaintiff. 17. State with a yes or no answer whether Plaintiff is required to provide software or services for Servolift for perpetuity. 9 18. State with a yes or no answer whether it states in the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination" it reads, "This Addendum shall become effective upon the date of the last signature set forth below or upon the Effective Date of the first License Schedule, and shall remain in full force and effect until terminated as provided for hereinafter: a) All non-perpetual licenses shall automatically and continually renew for an additional period of one (1) year per renewal term unless either party gives written notice of termination no less then ninety (90) days prior to the end of the term or renewal term." 19. State with a yes or no answer whether Plaintiff has the right to terminate the contract with Servolift based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." 20. State with a yes or no answer whether Servolift has the right to terminate the contract with Plaintiff based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." 21. State with a yes or no answer whether Servolift has any obligation to pay Plaintiff future licensing fees should Servolift terminate the contract with Plaintiff based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." 10 22. State with a yes or no answer whether Servolift has any obligation to pay Plaintiff future licensing fees should Plaintiff terminate the contract with Servolift based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." 23. State with a yes or no answer whether Plaintiff is required to revenue share with Raymond Spellman any future proceeds from the Servolift contract if Servolift terminates the contract with Plaintiff based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." 24. State with a yes or no answer whether Plaintiff is required to revenue share with Raymond Spellman any future proceeds from the Servolift contract if Plaintiff terminates the contract with Servolift based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." 25. State with a yes or no answer whether any of Plaintiff s contracts, written with other clients prior to the contract with Servolift, contained an automatic and continual renew for an additional period of one (1) year per renewal term unless either party gives written notice of termination no less then ninety (90) days prior to the end of the term or renewal term." 11 26. State with a yes or no answer whether it was Raymond Spellman who suggested to Plaintiff that the License Addendum signed between Plaintiff and Servolift should contain the automatic and continual renew verbiage. 27. If your answer to Interrogatory 26 above is no, please provide the name and address of the client or clients, whose contracts were written prior to the contract with Servolift, that contained the automatic and continual renew verbiage. 28. State with a yes or no answer whether Raymond Spellman had any obligation, per the agreement between Raymond Spellman and Plaintiff, to renegotiate or otherwise alter the agreement between Raymond Spellman and Plaintiff. 29. If the answer to Interrogatory 28 is yes, state why Raymond Spellman had an obligation, per the agreement between Raymond Spellman and Plaintiff, to renegotiate or otherwise alter the agreement between Raymond Spellman and Plaintiff. 30. Further, if your answer to Interrogatory 28 is yes, state why Raymond Spellman had any obligation, per the agreement between Raymond Spellman and Plaintiff, to change the revenue sharing agreement with Servolift from a 60% / 40% split to a 92% / 8% 12 split. (Plaintiff receiving the 60% and 92% respectively and Raymond Spellman receiving the 40% and 8% respectively). These Interrogatories are continuing in nature and it is specifically demanded that all information coming to your attention subsequent to the completion of your answers to these Interrogatories be promptly made available to Defendant. You should take notice that Defendant will object at trial to the introduction of evidence regazding any matters inquired of on these Interrogatories are not revealed in a timely manner. 13 Raymond J Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 Defendant EXPRESS DYNAMICS, WORKXPRESS, Plaintiff, v. RAYMOND SPELLMAN, Defendant. LLC d/b/a To: Kelly Decker Rhoads & Sinon LLP Twelfth Floor One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 QF rNELPR OHONOEiT~.~Y 2Qf 0 OCT -8 Ply 2: I ~' • 4. i'FYV ! tr.ti 9~~R~~t Cl IN THE COURT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. 10-1041 Civil NOTICE OF DEPOSITION PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, the Plaintiff will take the deposition of ANNA HODGES upon oral examination for the purpose of discovery or use at trial before a Notary Public or other person authorized to administer oath, at the Hotel Carlisle & Embers Convention Center, 1700 Harrisburg Pike, Carlisle, PA 17015, on Tuesday, November 9, 2010 at 10:00 A.M., and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues 1 and subject matter involved in the above-captioned action and that the above named person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. RAY ND SPE LMAN Dated: October 8, 2010 2 . '~ CERTIFICATION I hereby certify that on October 8, 2010, a true and correct copy of the foregoing Notice of Deposition was served by Hand Delivery upon the following: Kelly Decker Rhoads & Sinon LLP "twelfth Floor One South Market Square PO Box 1146 i-iarrisburg, PA 17108-1146 BY 3 Raymond J Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 Defendant EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, ~~~~1~ jtzC~~;°;~i ~~~ ~, ,fiT~`~~ r ~~10 OCT' -8 Pt1 2: ~ ~ ~'!1~'~~~;'~Lp~~D CC~G~1T°' IN THE COURT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, v. CIVIL ACTION -LAW No. 10-1041 Civil RAYMOND SPELLMAN, Defendant. To: Kelly Decker Rhoads & Sinon LLP Twelfth Floor One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 NOTICE OF DEPOSITION PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, the Plaintiff will take the deposition of Plaintiff TREFF LAPLANTE upon oral examination for the purpose of discovery or use at trial before a Notary Public or other person authorized to administer oath, at the Hotel Carlisle & Embers Convention Center, 1700 Harrisburg Pike Carlisle, PA 17015, on Thursday, November 11, 2010 at 10:00 A.M., and continuing from day to day until concluded on all matters not privileged which are relevant and material to the 1 issues and subject matter involved in the above-captioned action and that the above named person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. P Defendant O D SPELLMAN Dated: October 8, 2010 2 CI'JRTIFICATION I hereby certify that on October 8, 2010, a true and correct copy of the foregoing Notice of Deposition was served by Hand Delivery upon the following: Kelly Decker Rhoads & Sinon LLP Twelfth Fioor Une South ivlarket Square PO Box 1146 riarrisourg, PA 17108-ll4G BY •_ , • Raymond J Spellman 327 Moms Avenue Boonton, New Jersey 07005 973-335-8001 Defendant EXPRESS DYNAMICS, WORKXPRESS, Plaintiff, v. RAYMOND SPELLMAN, Defendant. LLC d/b/a To: Kelly Decker Rhoads & Sinon LLP Twelfth Floor One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 2~t0QCr _g ~~ 2= 1~ ~~ IN THE COURT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW No. 10-1041 Civil NOTICE OF DEPOSITION ' PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, the Plaintiff will take the deposition of DREW MCLAIN upon oral examination for the purpose of discovery or use at trial before a Notary Public or other person authorized to administer oath, at the Hotel Carlisle & Embers Convention Center, 1700 Harrisburg Pike, Carlisle, PA 17015, on Wednesday, November 10, 2010 at 10:00 A.M., and continuing from day to day until concluded on all matters not privileged which are relevant and material to the 1 ~. . issues and subject matter involved in the above-captioned action and that the above named person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. Defendant RAY D SP LL Dated: October 8, 2010 2 CERTIFICATION I hereby certify that on October 8, 2010, a true and correct copy of the foregoing Notice of Deposition was served by Hand Delivery upon the following: Kelly Decker Rhoads & Sinon LLP 'T'welfth Fioor One South Market Square PO Box 1146 riarris~urg, PA 17108-1146 BY: EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff V RAYMOND SPELLMAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAWS rri NO. 2010-1041 CIVIL TERM IN RE: MOTION TO COMPEL ORDER OF COURT AND NOW, this 7th day of October, 2010, the n-, } 17- cross-motions of the parties to compel answers to interrogatories in this case are denied without prejudice to either side to re-propound more appropriate interrogatories. See Brittain vs. Dow Chemical 36 CLJ 497. This order is intended to address itself to all written discovery outstanding as of the date of this order. The parties shall agree on a date for the deposition of the Defendant Raymond J. Spellman between the 1st of November and the 12th of November, 2010. The initial dates to be selected by the defendant, and the final date to be selected subject to the availability of counsel for the plaintiff. By the Court, --' Kelly H. Decker, Esquire For Plaintiff Raymond J. Spellman Pro se Defendant 327 Morris Avenue Boonton, NJ 07005 r : bg (2:5pt£g ma t t£c( EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff V RAYMOND SPELLMAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA. CIVIL ACTION - LAW NO. 2010-1041 CIVIL TERM IN RE: CASE STRICKEN FROM ARGUMENT COURT LIST ORDER OF COURT AND NOW, this 7th day of October, 2010, this matter is stricken from the argument court list for December 15, 2010. By the Court, Kelly H. Decker, Esquire For Plaintiff Raymond J. Spellman Pro se Defendant 327 Morris Avenue Boonton, NJ 07005 :bg /%o./,0 :„': fist ?' 3 :? : •;;1 f C n d CD _ 71 Raymond J Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 Defendant 0 FILED-OFFICE 2010 DF'C -3 PIS 1: o C€ MBERLA #D COUNTY PENNSYLVAo- IM EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff, V. RAYMOND J SPELLMAN, Defendant. IN THE COURT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 10-1041 Civil DEFENDANT'S MOTION TO COMPEL PLAINTIFF EXPRESS DYNAMICS LLC d/b/a WORKXPRESS ANSWERS TO THIRD SET OF INTERROGATORIES AND DEFENDANT'S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF PURSUANT TO PA.R.C.P 4019 NOW COMES, Defendant, Raymond Spellman and files the within Motion to Compel Plaintiff Express Dynamics, LLC d/b/a Workxpress Answers to Interrogatories and production of Documents pursuant to Rule 4019(a)(1) of the Pennsylvania Rules of Civil Procedure, stating as follows: Plaintiff Express Dynamics, LLC and WorkXpress, LLC ("WorkXpress") is a software development company currently located at 453 Lincoln Street, Carlisle, Pennsylvania 17013. 2. Defendant Raymond Spellman ("Spellman") is located at 327 Morris Avenue, Boonton, Morris County, New Jersey 07005. 3. Defendant entered into an oral agreement with Plaintiff that defined the sharing of revenues for Defendants customer Servolift, LLC ("Servolift") located at 105 West Dewey Ave, Building B, Wharton, Morris County, New Jersey 07855. 4. Plaintiff, a Pennsylvania Limited Liability Company, was unaware of the New Jersey based Servolift, and had no prior knowledge of their existence and no prior relationship with Servolift or their employees or their agents prior to Spellman's introduction of Treff LaPlante, Express Dynamics or WorkXpress to Servolift in 2005. 5. Defendant alleges that Plaintiff, with complete malice and in bad faith, filed the Complaint For Declaratory Judgment on February 9, 2010 when Plaintiff learned that a legal action against Plaintiff by Defendant to demand the monies owed Defendant from Plaintiff was imminent. 6. Defendant alleges that Plaintiff filed the action in Pennsylvania for jurisdictional reasons as Plaintiff knows full well that the agreement between the parties was ratified in New Jersey making New Jersey the proper jurisdiction for this oral agreement. 7. This meritless and frivolous action, perpetrated on this Defendant and this Court by Plaintiff, is in bad faith and was conceived by Plaintiff as a way to deny Defendant money legally and rightfully earned, owed and due from Servolift. 8. Further, it has been almost ten months since the filing of this Declaratory Judgment and Plaintiff has presented no proof to substantiate the allegations presented in the Complaint for Declaratory Judgment. 9. Defendant has reviewed Plaintiff's Answers to Defendant's Third Set of Interrogatories and Defendant has found Plaintiff's Answer to be non- responsive, deficient, ambiguous, vague and or avoids to answer the interrogatories as requested. 10. The specific Interrogatories in question are as follows: 11. INTERROGATORY No. 2: List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, employee, company or entity that was utilized in the development of Plaintiff's software from 2005 to present. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs objection and response to Interrogatory No. 2. The information sought is neither confidential nor proprietary in nature nor is it overly broad in time and scope. Rule 4003.1 of the Pennsylvania Code of Civil Procedures states that "(a)... a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. (b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." b. DEFENDANT'S ARGUMENT: Clearly any person employed with a company with only a two room office may have information that is reasonably calculated to lead to the discovery of admissible evidence. Defendant requests a complete list of employees as requested in Interrogatory No. 2. 12. INTERROGATORY No. 3: List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, employee, company or entity that was utilized in the sales and/or marketing of Plaintiff's software from 2005 to present. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs objection and response to Interrogatory No. 3. The information sought is neither confidential nor proprietary in nature nor is it overly broad in time and scope. Rule 4003.1 of the Pennsylvania Code of Civil Procedures states that "(a)... a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. (b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." b. DEFENDANT'S ARGUMENT: Clearly any person employed with a company with only a two room office may have information that is reasonably calculated to lead to the discovery of admissible evidence. Defendant requests a complete list of employees as requested in Interrogatory No. 3. 13. INTERROGATORY No. 4: List and attach to the answers to these Interrogatories true copies of all of the names, addresses, phone numbers and email address of any person, company or entity that is or was classified as a VAR, Agent or Partner of Plaintiff's from 2005 to present. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs objection and response to Interrogatory No. 4. The information sought is neither proprietary nor confidential as Plaintiff publicizes this information publicly on its website. Further, the information is relevant and may lead to discovery of admissible evidence. Lastly, the information sought does not predate when Plaintiff and Defendant started discussions. Rule 4003.1 of the Pennsylvania Code of Civil Procedures states, "that (a)... a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. (b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." b. DEFENDANT'S ARGUMENT: Clearly any VAR, Agent or Partner may have information that is reasonably calculated to lead to the discovery of admissible evidence. Defendant requests a complete list of VAR's, Agents and/or Partners as requested in Interrogatory No. 4. 14. INTERROGATORY No. 12: Concerning the agreement between Raymond Spellman and Plaintiff state what roles and/or responsibilities Plaintiff was to perform for Servolift. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 12 as it does not answer the question. Plaintiff is requested to provide a proper answer. 15. INTERROGATORY No. 14: State with a yes or no answer whether at any time during the oral agreement between Raymond Spellman and Plaintiff that the parties discussed that, "(the oral agreement) has been terminable at the will of either party." (Quote references Complaint for Declaratory Judgment J[ 12). a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 14. Interrogatory No. 14 clearly requests a yes or no answer. No further response was requested. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 16. INTERROGATORY No. 15: State with a yes or no answer whether Raymond Spellman agreed that the agreement between Defendant and Plaintiff was cancelable "at the will of either party." a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 15. Interrogatory No. 15 clearly requests a yes or no answer. No further response was requested. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 17. INTERROGATORY No. 17: State with a yes or no answer whether Plaintiff is required to provide software or services for Servolift for perpetuity. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 17. Interrogatory No. 17 clearly requests a yes or no answer. No further response was requested. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 18. INTERROGATORY No. 18: State with a yes or no answer whether it states in the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination" it reads, "This Addendum shall become effective upon the date of the last signature set forth below or upon the Effective Date of the first License Schedule, and shall remain in full force and effect until terminated as provided for hereinafter: a) All non-perpetual licenses shall automatically and continually renew for an additional period of one (1) year per renewal term unless either party gives written notice of termination no less then ninety (90) days prior to the end of the term or renewal term." a. Defendant objects to Plaintiffs response to Interrogatory No. 18. Interrogatory No. 18 clearly requests a yes or no answer. No further response was requested. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 19. INTERROGATORY No. 19: State with a yes or no answer whether Plaintiff has the right to terminate the contract with Servolift based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 19. Interrogatory No. 19 clearly requests a yes or no answer. No further response was requested. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 20. INTERROGATORY No. 20: State with a yes or no answer whether Servolift has the right to terminate the contract with Plaintiff based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 20. Interrogatory No. 20 clearly requests a yes or no answer. No further response was requested. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 21. INTERROGATORY No. 21: State with a yes or no answer whether Servolift has any obligation to pay Plaintiff future licensing fees should Servolift terminate the contract with Plaintiff based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 21. Interrogatory No. 21 clearly requests a yes or no answer. No further response was requested. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 22. INTERROGATORY No. 22: State with a yes or no answer whether Servolift has any obligation to pay Plaintiff future licensing fees should Plaintiff terminate the contract with Servolift based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 22. Interrogatory No. 22 clearly requests a yes or no answer. No further response was requested. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 23. INTERROGATORY No. 23: State with a yes or no answer whether Plaintiff is required to revenue share with Raymond Spellman any future proceeds from the Servolift contract if Servolift terminates the contract with Plaintiff based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 23. Defendant objects to Plaintiff's objection that the use of the phrase "revenue share" is vague or ambiguous. Further, Interrogatory No. 23 clearly requests a yes or no answer. No further response was requested. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 24. INTERROGATORY No. 24: State with a yes or no answer whether Plaintiff is required to revenue share with Raymond Spellman any future proceeds from the Servolift contract if Plaintiff terminates the contract with Servolift based on the terms and conditions of the License Addendum signed between Plaintiff and Servolift specifically "Section 12. Term and Termination." a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 24. Defendant objects to Plaintiff's objection that the use of the phrase "revenue share" is vague or ambiguous. Further, Interrogatory No. 24 clearly requests a yes or no answer. No further response was requested. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 25. INTERROGATORY No. 25: State with a yes or no answer whether any of Plaintiff's contracts, written with other clients prior to the contract with Servolift, contained an automatic and continual renew for an additional period of one (1) year per renewal term unless either party gives written notice of termination no less then ninety (90) days prior to the end of the term or renewal term." a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 25. Interrogatory No. 25 clearly requests a yes or no answer. Plaintiff's response was "Unknown" which is not an appropriate response. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 26. INTERROGATORY No. 26: State with a yes or no answer whether it was Raymond Spellman who suggested to Plaintiff that the License Addendum signed between Plaintiff and Servolift should contain the automatic and continual renew verbiage. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 26. Interrogatory No. 26 clearly requests a yes or no answer. Plaintiff's response was "Unknown" which is not an appropriate response. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 27. INTERROGATORY No. 27: If your answer to Interrogatory 26 above is no, please provide the name and address of the client or clients, whose contracts were written prior to the contract with Servolift, that contained the automatic and continual renew verbiage. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs objection and response to Interrogatory No. 27. The information sought is neither overly broad, unduly burdensome, unlimited in time and scope nor un- relevant and may lead to the discovery of admissible evidence. Rule 4003.1 of the Pennsylvania Code of Civil Procedures states that (a)... a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. (b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. 28. INTERROGATORY No. 28: State with a yes or no answer whether Raymond Spellman had any obligation, per the agreement between Raymond Spellman and Plaintiff, to renegotiate or otherwise alter the agreement between Raymond Spellman and Plaintiff. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 28. Interrogatory No. 28 clearly requests a yes or no answer. Plaintiff's response was completely irrelevant and does not answer the question. Any response other than yes or no should be deleted and Defendant is requesting that Plaintiff amend its answer accordingly. 29. INTERROGATORY No. 29: If the answer to Interrogatory 28 is yes, state why Raymond Spellman had an obligation, per the agreement between Raymond Spellman and Plaintiff, to renegotiate or otherwise alter the agreement between Raymond Spellman and Plaintiff. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 29. Plaintiff's response was completely irrelevant and does not answer the question. Defendant is requesting that Plaintiff amend its answer accordingly. 30. INTERROGATORY No. 30: Further, if your answer to Interrogatory 28 is yes, state why Raymond Spellman had any obligation, per the agreement between Raymond Spellman and Plaintiff, to change the revenue sharing agreement with Servolift from a 60% / 40% split to a 92% / 8% split. (Plaintiff receiving the 60% and 92% respectively and Raymond Spellman receiving the 40% and 8% respectively). a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Interrogatory No. 30. Plaintiff's response was completely irrelevant and does not answer the question. Defendant is requesting that Plaintiff amend its answer accordingly. 31. Defendant has reviewed Plaintiff's Answers to Defendant's Second Request For Production of Documents to Plaintiff and has found Plaintiff's Answer to be non-responsive, deficient, ambiguous, vague and or avoids to answer the interrogatories as requested. 32. The specific Answers to Defendant's Second Request For Production of Documents to Plaintiff in question are as follows: 33. PRODUCTION OF DOCUMENTS AND THINGS No. 13: Any and all documents generated by Plaintiff, in its normal course of business, which state, evidence, refer, relate or contain the words "own the customer relationship" or "owns the customer relationship." a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Production of Documents and Things No. 13. The request was to provide "Any and all documents generated by Plaintiff, in its normal course of business, which state, evidence, refer, relate or contain the words "own the customer relationship" or "owns the customer relationship." Plaintiff describes or characterizes their interpretation of the meaning but does not provide the appropriate documentation and Defendant is requesting Plaintiff amends their answer. 34. PRODUCTION OF DOCUMENTS AND THINGS No. 14: Any and all documents generated by Plaintiff, in its normal course of business, which refer, relate to, pertain to, or define payment to VAR's Agents, Partners after receipt of payment from end-user. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Production of Documents and Things No. 14. The request was to provide "Any and all documents generated by Plaintiff, in its normal course of business, which refer, relate to, pertain to, or define payment to VAR's Agents, Partners after receipt of payment from end-user." b. Plaintiff describes or characterizes their interpretation of the meaning but does not provide the appropriate documentation and Defendant is requesting Plaintiff amends their answer. 35. PRODUCTION OF DOCUMENTS AND THINGS No. 16: Any and all documents which refer, relate to, pertain to or define your relationship and contacts with Servolift, LLC or their employees or their agents, after to June 1, 2005. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Production of Documents and Things No. 16. The information sought is neither overly broad nor unduly burdensome. The request was to provide "Any and all documents which refer, relate to, pertain to or define your relationship and contacts with Servolift, LLC or their employees or their agents, after to June 1, 2005." The Plaintiff does not provide any documents and Defendant is requesting the Plaintiff answer the question appropriately. 36. PRODUCTION OF DOCUMENTS AND THINGS No. 23: Any and all documents written between Plaintiff and Defendant that permits Plaintiff to propose the sale of goods or services directly to Servolift. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Production of Documents and Things No. 23. The request was to provide "Any and all documents written between Plaintiff and Defendant that permits Plaintiff to propose the sale of goods or services directly to Servolift." b. Plaintiff's answer is completely non- responsive and does not provide documents. Defendant is requesting that Plaintiff provide the documents requested. 37. PRODUCTION OF DOCUMENTS AND THINGS No. 24: Any and all of Plaintiff's banking deposit statements that evidence all payments received from Servolift from June 1, 2005 to present. Any non Servolift payments or any other non-related information found on these documents may be removed by blackening or whiting out. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Production of Documents and Things No. 24. The request was to provide "Any and all of Plaintiff's banking deposit statements that evidence all payments received from Servolift from June 1, 2005 to present." It appears that Plaintiff submitted an "Accounting Statement." Defendant requested "BANKING DEPOSIT STATEMENTS" which show when deposits were made by Plaintiff into the banking institution of Servolift funds. Defendant is requesting that Plaintiff provide "BANKING DEPOSIT STATEMENTS." 38. PRODUCTION OF DOCUMENTS AND THINGS No. 25: Any and all technology service charges or expense reports attributable to Servolift from June 1, 2005 to present. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Production of Documents and Things No. 25. The request was to provide "Any and all technology service charges or expense reports attributable to Servolift from June 1, 2005 to present." It appears that Plaintiff submitted an "Accounting Statement." Defendant requested "technology service charges or expense reports." Defendant is requesting that Plaintiff provide "technology service charges or expense reports." 39. PRODUCTION OF DOCUMENTS AND THINGS No. 31: All documents prepared by you, or by a representative, agent, or anyone acting on your behalf, except your attorneys, during an investigation of the allegations and events regarding the issues of this case, or prepared in anticipation of litigation or trial of this matter. Such documents shall include any documents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions, or the opinions respecting the value or merit of the claim or respecting strategy or tactics. a. DEFENDANT'S OBJECTION: Defendant objects to Plaintiffs response to Production of Documents and Things No. 31. The information sought is not subject to attorney client privilege and/or work product doctrine. Rule 4003.3 of the Pennsylvania Code of Civil Procedures states, "... a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party's representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent." The request was to provide "All documents prepared by you, or by a representative, agent, or anyone acting on your behalf, except your attorneys, during an investigation of the allegations and events regarding the issues of this case, or prepared in anticipation of litigation or trial of this matter." The Plaintiff does not provide any documents and Defendant is requesting the Plaintiff answer the question appropriately. 40. Defendant is filing a motion with this good court to Compel Plaintiff to completely and fully answer the Defendant's Third Set of Interrogatories. 41. Defendant is filing a motion with this good court to Compel Plaintiff to completely and fully answer the Defendant's Second Request For Production of Documents to Plaintiff. 42. Plaintiff has made serious claims and accusations, has requested this Declaratory Judgment from this court, and yet Plaintiff, having the burden of proof, and given the opportunity, has not demonstrated any evidence, writing, tape recording, email or any other evidence that substantiates Plaintiff's claims. Instead, Plaintiff has hired Rhoads & Sinon a high powered Pennsylvania law firm whose website boast over 53 lawyers. This firm makes objection after objection and list procedural error after procedural error but also has not provided any evidence to substantiate Plaintiff's claims. 43. Defendant alleges that the Plaintiff, unable to prove its claims, is simply trying to use expensive and time consuming legal tactics, objections and motions against a Pro Se Defendant who resides approximately 3 hours away for the court. 44. The court should see to it that Plaintiff, who has the burden of proof in this matter, fully and completely presents any and all of its evidence, as requested in Defendant's Third Set of Interrogatories to Plaintiff. 45. Also, the court should see to it that Plaintiff, who has the burden of proof in this matter, fully and completely presents any and all of its evidence, as requested in the Defendant's Second Request For Production of Documents to Plaintiff. 46. This Honorable Court, pursuant to Pa. R. Civ. P 4019, has the authority and discretion to compel a party to respond to written discovery requests. The appropriate remedy for failure to comply with discovery requests is for this Honorable Court to grant Defendant's Motion to compel Plaintiff to serve answers and responses to Defendants discovery requests (all objections having been waived). WHEREFORE, Defendant, Raymond Spellman, respectfully requests that this Honorable Court enter an Order directing Plaintiff, Express Dynamics, LLC d/b/a WorkXpress, to serve complete and substantive answers and responses to Plaintiff's outstanding discovery within ten (10) days. CYI?A- PRAECIPE FOR LISTING CASE FOR ARGUMENT Must be typed and submitted in Triplicate TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument Court.) Express Dynamics, LLC dlbla WorkXpress VS. Raymond Spellman No. 1041, 2010 Term 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion to Compel Plaintiff's Answers to Third Set of Interrogatories and Second Set of Production of Documents and Things 2. Identify all counsel who will argue cases: a. for plaintiffs: Kelly Decker, ESQ., Rhoads & Sinon LLP,1 So. Market Sqr, Harrisburg, PA 17101 b. for defendants: Raymond Spellman, Defendant, 327 Morris Avenue, Boonton, NJ 07005 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Raymond J Spellman Defendant Date: IYOJ a ! 2010 INSTRUCTIONS: C 'Qrt rrjC _ e - z ? Or- 'a c CD r-mt W # 4CD X-n D rn ? o rn ? 1, Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. CERTIFICATION OF SERVICE I hereby certify that on this 291h day of November, 2010, a true and correct copy of the foregoing Rule to Show Cause and Defendants Motion to Compel Plaintiff Express Dynamics, LLC d/b/a WorkXpress Answers to Interrogatories was served by means of hand delivery or by United States Mail, first class, postage prepaid, upon the followings: Kelly H. Decker Rhoads & Sinon LLP Twelfth Floor One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 A(&v?°J 2016 Raymond Spellman c o ?? p3 ca ° -+ r z r n -0m t~- D c: n a D? CD-M zo c') °M V Raymond J Spellman 327 Morris Avenue Boonton, New Jersey 07005 973-335-8001 Defendant EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff, V. RAYMOND J SPELLMAN, Defendant. pD T} ?0 CE THE T" .Q y 20I0QE,r-7 AH11:2S f%1JM4ERLANO COUNTY PE-NSYLVAtj«, IN THE COURT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 10-1041 Civil DEFENDANTS MOTION REQUESTING CHANGE OF VENUE The Defendant, Raymond Spellman, respectfully moves this Honorable Court to transfer venue from THE COURT OF COMMON PLEASE CUMBERLAND COUNTY, PENNSYLVANIA to the MORRIS COUNTRY COURTHOUSE in Morristown, New Jersey in support thereof, represents the following: 1. Plaintiff Express Dynamics, LLC and WorkXpress, LLC ("WorkXpress") is a software development company currently located at 453 Lincoln Street, Carlisle, Pennsylvania 17013. 2. Defendant Raymond Spellman ("Spellman") is located at 327 Morris Avenue, Boonton, Morris County, New Jersey 07005. 3. Defendant entered into an oral agreement with Plaintiff that defined the sharing of revenues for Defendants customer Servolift, LLC ("Servolift") located at 105 West Dewey Ave, Building B, Wharton, Morris County, New Jersey 07855. 4. Plaintiff, a Pennsylvania Limited Liability Company, was unaware of the New Jersey based Servolift, and had no prior knowledge of their existence and no prior relationship with Servolift or their employees or their agents prior to Defendant's introduction of Plaintiff Treff LaPlante, Express Dynamics or WorkXpress to Servolift in 2005. 5. Defendant alleges that Plaintiff, with complete malice and in bad faith, filed the Complaint for Declaratory Judgment on February 9, 2010 when Plaintiff learned that a legal action against Plaintiff by Defendant to demand the monies owed Defendant from Plaintiff was imminent. 6. Defendant alleges that Plaintiff filed the action in Pennsylvania to prejudice a Pro Se litigant as Plaintiff knows full well that the agreement between the parties was ratified in New Jersey at 327 Morris Avenue, Boonton New Jersey 07005, making New Jersey the proper jurisdiction for this oral agreement. 7. In Plaintiff's Complaint for Declaratory judgment Paragraph 3 states, "This action arises under the laws of the Commonwealth of Pennsylvania and is within the subject matter jurisdiction of this court." 8. Defendant in his Answer - Amended states, "Defendant denies the allegations set forth in Paragraph 3 of the Complaint." 9. Further, in Plaintiff's Complaint for Declaratory Judgment Paragraph 13 states, "The oral agreements between WorkXpress and its VAR's were made and formed in Pennsylvania. 10. Defendant in his Answer - Amended states, "The Defendant has insufficient knowledge regarding the truth of the allegations of Paragraph [13] of the Complaint and leaves Plaintiff to its proofs thereon. Concerning the oral agreement between Treff LaPlante, Express Dynamics and WorkXpress, this oral agreement was made in the Defendant's office at New Jersey. Upon completion of the initial sales presentation Laplante, Express Dynamics, WorkXpress and Defendant met at the Defendant's office in New Jersey to discuss the opportunity and to finalize the agreement with Defendant's client Servolift." 11. Further, Defendant in his Answer - Amended Paragraph 14 states, "Defendant admits that he entered into an oral agreement with the Plaintiff but except as expressly admitted herein, the Defendant expressly denies the rest and remainder of Paragraph 14. Defendant entered into an agreement with Plaintiff Company represented by Mr. LaPlante that defined the sharing of revenues for Defendants customer Servolift, LLC ("Servolift") located at 105 West Dewey Ave, Building B, Wharton, Morris County, New Jersey 07855. Defendant denies that he was a VAR for Treff LaPlante, Express Dynamics and/or WorkXpress." 12. Defendant was aware that the proper venue was Morris County New Jersey but did not have the appropriate proof. 13. Defendant moves for the change in venue at this time because Defendant finally received at least partial discovery from Plaintiff on November 8, 2010; nine months after Plaintiff filed this Declaratory Judgment. 14. Plaintiff, who has the burden of proof in this case has continually deployed a strategy of delaying the proper presentation of discover information. 15. Defendant alleges that Plaintiff deploys this "Strategy of Delay and Difficulty" because the discovery information requested provides information counter to Plaintiff's claim and to prejudice a Pro Se Defendant. This is a planned and calculated strategy on the part of the Plaintiff in an attempt to mask its unsubstantiated claims, perpetuate his scheme and prejudice a Pro Se Defendant. 16. Defendant provides the following "on or about" timeline of Plaintiffs discover delay and difficulties: a. March 4, 2010: Defendant submits First Request for Interrogatories. b. April 5, 2010: Plaintiff Answers First Request for Interrogatories. c. May 6, 2010: Defendant files Motion to Compel First Interrogatories because Interrogatories are deficient. d. July 6, 2010: Defendant Submits Second Request for Interrogatories e. August 3, 2010: Defendant files Objection to First Request for Interrogatories. f. September 20, 2010: Plaintiff answers Second Request for Interrogatories (almost 1.5 months late). g. October 6, 2010: Defendant files Motion to Compel proper Answer to First and Second Set of Interrogatories and Request for Production of Documents and Things. h. October 8, 2010: Defendant submits Third Set of Interrogatories and Second Request for Production of Documents and Things. i. November 7, 2010: Motion to Compel Hearing with the Honorable Judge Hess. j. November 8, 2010: Plaintiff answers Third Set of Interrogatories and Second Request for Production of Documents and Things. k. November 17, 2010: Spellman Deposition by Plaintiff. 1. November 17, 2010: At the deposition Spellman presents Plaintiff with a sixteen page letter (16) letter objecting to deficiencies in Third Set of Interrogatories and Second Request for Production of Documents and Things. m. November 30, 2010: Defendant files Motion to Compel Third Set of Interrogatories and Second Request for Production of Documents and Things. n. December 3, 2010: Defendant files Motion to Change Venue less than 30 days after receiving Plaintiff's partial discovery answers which demonstrates that the agreement between Plaintiff and Defendant took place at 327 Morris Avenue, Boonton New Jersey after the November 9, 2005 sales meeting with Servolift. 17. Defendant has served upon Plaintiff three (3) sets of Interrogatories and two (2) sets of Production of Documents and Things. 18. Each and every time, 5 in total, Defendant has had to file a Motion to Compel discovery against Plaintiff with this good court. 19. Further, on October 8, 2010 Spellman sent Notice of Deposition to Drew McClain (Schedule for November 10, 2010) and Treff Laplante (Scheduled for November 11, 2010) both with WorkXpress. 20. Kelly H Decker, attorney for WorkXpress responded on October 14, 2010 that neither was available those days and that she would, "provide you with dates when Mr. LaPlante, Mr. McLain, and I are available for their depositions... " 21. Nearly two months have passed since Mr. McClain and Mr. Laplante were sent their Notice of Deposition and Ms. Decker has not provided any dates for their deposition; further delaying Discovery and this case. 22. Plaintiff, who has the burden of proof in this case, has had the opportunity to present evidence that supports his claim and yet continues to not do so. 23. This meritless and frivolous action, perpetrated on this Defendant and this Court by Plaintiff, is in bad faith and was conceived by Plaintiff as a way to deny Defendant money legally and rightfully earned, owed and due from Servolift. 24. The agreement between Plaintiff and Defendant was ratified on November 9, 2005 at 327, Morris Avenue, Boonton, New Jersey after the sales meeting with Servolift. 25. In Plaintiff's email to Defendant of November 12, 2005, just three days after the Servolift meeting, Plaintiff writes, "We DO [emphasis provided by Plaintiff] have an agreement that we are working under for PSE and Servo Lift [Servolift] ... " 26. Plaintiff's own words demonstrate that the agreement was ratified in New Jersey. DISCUSSION 1. The statute governing the transfer of venue in civil actions, generally, 28 U.S.C. § 1404(a) provides, "for the convenience of the parties and the witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it may have been brought." 2. The crucial events underlying this cause of action occurred in New Jersey; offer for contract was accepted in New Jersey; Spellman and Servolift (client of Plaintiff and Defendant) reside and do business in New Jersey. Plaintiff does work in New Jersey. 3. The main factor which has to be considered is that the cause of action that is ratifying of Contract has taken place in New Jersey. 4. Regarding convenience of party's place of residence of Defendant is New Jersey so changing the venue of the case would be convenient to Defendant. 5. Both Offer and Acceptance of the Contract was in New Jersey and Cause of Action also took place in New Jersey. 6. Servolift and other probable witnesses to this case live and work in New Jersey all within about 15 miles from the Morris Country Courthouse. 7. The Cumberland County Courthouse in Carlisle Pennsylvania is approximately 170 miles from the Morris County Courthouse in Morristown, New Jersey. 8. 28 U.S.C. § 1404(a) contains no time limit for the filing of a motion. 9. Defendant certainly was not dilatory in the filing of this Motion to Change Venue as Plaintiff filed the Motion within thirty days after learning of the email finally provided by Plaintiff in discovery. 10. Plaintiff would not be prejudiced in any way if the venue was moved to New Jersey and in fact benefits from the change in venue as all key Servolift witnesses and other witness to this action reside in New Jersey; all less than 15 miles from the Morris County Courthouse. 11. This action should have been originally brought in New Jersey considering the convenience of the parties. Debra K. Keuther And Norman Keuther v. Alan I. Snyder, 1995.PA.17550 Pennsylvania Rule of Civil Procedure 1006(d) (1) addresses changes of venue based upon forum non conveniens: "For the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought." Pa.R.C.P. No. 1006(d)(1), 42 Pa.C.S.A.Ernest v. Fox Pool Corp., 341 Pa. Super. 71, 75, 491 A.2d 154, 156 (1985) The rule permits a court, in its sound discretion, to transfer venue "for the convenience of parties and witnesses." 12. The first step in a court's analysis of a transfer motion is to determine whether venue would be proper in the transferee district. Pro Spice, Inc. v. Omni Trade Group, Inc. 173 F. Supp. 2d 336, 339 (E.D. Pa. 2001). If the first prong of the inquiry is satisfied, the then court determines whether a transfer would be appropriate by weighing a series of private and public factors. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.1995). 13. Courts are required to weigh several relevant private and public factors in considering whether to grant a motion to transfer. The private factors include: (1) plaintiff's choice of forum; (2) defendant's preference; (3) whether the claim arose elsewhere; (4) the convenience of the parties as indicated by their relative physical and financial conditions; (5) convenience of witnesses, only to the extent that they may be unavailable for trial in one of the fora; and (6) the location of books and records, only to the extent that they could not be produced in one of the fora. Jumara, 55 F.3d at 879.( Jumara v. State Farm Insurance Company, 55 F.3d 873, 878 (3d Cir.1995). 14. Four out of six factors in Private interest are relevant in our case. This should be given great importance. 15. The strongest factor in favor of transfer, of course, is the fact that the incidents giving rise to the Complaint all occurred in New Jersey and all three parties, Plaintiff, Defendant and Servolift do business in New Jersey. 16. The public factors include: (1) enforceability of the judgment; (2) practical considerations which could make the trial easy, expeditious, or inexpensive; (3) relative administrative difficulties resulting from court congestion; (4) local interests in deciding local controversies at home; (5) public policies of the fora; and (6) the familiarity of the trial judge with the applicable state law in diversity cases. Jumara at 879-880. (Jumara v. State Farm Insurance Company, 55 F.3d 873, 878 (3d Cir.1995). 17. Five out of the six factors in Public interest are relevant in our case. This should be given great importance. 18. Defendant in this case is an individual who is a permanent resident of New Jersey and does business in New Jersey. Convenience of the parties should be considered. 19. Plaintiff does business in New Jersey and collects money and profits in the State of New Jersey. 20. The State of New Jersey has an interest in the business affairs conducted in its state. 21. Servolift, the client of Plaintiff and Defendant, is headquartered in New Jersey and in all likelihood employees from Servolift may be required to testify at trial. 22. Further, Julie Spellman, another witness to this case lives in New Jersey and may be required to testify. 23. Again, it appears that all witnesses to this litigation, except for Treff LaPlante, or other employees of WorkXpress reside in New Jersey; all less than 15 miles from the Morris County Courthouse. 24. Again, the Cumberland County Courthouse in Carlisle Pennsylvania is approximately 170 miles from the Morris County Courthouse in Morristown, New Jersey. 25. Defendant would have to bear considerable hardship in preparing and presenting testimony in support of his case, if the venue is not changed to Morris County, New Jersey. 26. Defendant is a Pro Se litigant and is unfamiliar with the Pennsylvania Rules of Civil Procedures of Pennsylvania. 27. Defendant is a Pro Se litigant and has some court experience in the State of New Jersey. 28. Plaintiff is represented by Rhoads and Sinon who is licensed to practice law in the state of New Jersey and has substantial legal experience in New Jersey. 29. Plaintiff, through their attorneys Rhoads and Sinon, are aware of Defendants Pro Se representation and have, right from the very beginning of the case, employed extensive delayed tactics and obstructed discovery requests forcing Defendant to file three (3) Motion to Compel Interrogatories and Two (2) Motion to Compel Production of Documents and Things. 30. Defendant believes that Plaintiff, through their attorneys Rhoads and Sinon, may be more likely to abide by court rules if they knew the hearing would be held in New Jersey and not in Pennsylvania which is less than one (1) miles from Plaintiff's offices. 31. A transfer of venue for the convenience of the parties and in the interest of justice would not prejudice either party in this case as the case is still in the discovery stage of this trial. 32. A transfer of venue for the convenience of the parties and in the interest of justice may be made upon motion by either of the parties or by the court sua sponte. Mobil Corp. v. S.E.C., 550 F. Supp. 67,69 (S.D.N.Y.1982); 33. Defendant states that this venue is improper as the Agreement was entered in New Jersey. Generally venue depends on residency and employment issues. 34. For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. 28 U.S.C. § 1404(a). Section 1404(a) applies to cases where venue would be proper in both the original and requested locations. Jumara v. State Farm Insurance Company, 55 F.3d 873, 878 (3d Cir.1995). 35. On account of the interpretation of the aforementioned legal provisions and Case precedents into the present case scenario it has to be estimated that it will be convenient for the parties if venue is changed. 36. Defendant requests that the court order that the case should be transferred to Morris County in New Jersey and further that Plaintiff shall pay Defendants Cost and Transfer Fees. Defendant also respectfully requests this Court to stay further proceedings in this court until it has an opportunity to rule on the present Motion to Change Venue. 37. Wherefore Defendant respectfully submits before this honorable court to grant change of venue to Morris County, New Jersey. Dated this 3rd day of December 2010 Submitted Raymond Spellman Pro Se 41 D- V4I CERTIFICATION OF SERVICE I hereby certify that on this 3rd day of December, 2010, a true and correct copy of the foregoing Rule to Show Cause and Defendants Motion to Change Venue was served by means of hand delivery or by United States Mail, first class, postage prepaid, upon the followings: Kelly H. Decker C ? -° Rhoads & Sinon LLP rna) _ ° Twelfth Floor s r C Mi. One South Market Square ? ?o PO Box 1146 - arrisburg, PA 17108-1146 H C ) ?o _ - n :z ° ' : . rn --r rv b Spellman ?r?-? A PRAECIPE FOR LISTING CASE FOR ARGUMENT Must be typed and submitted in Triplicate TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for Argument Court.) rr Express Dynamics, LLC d1bla WorkXpress ndRJ n t v VS. n 4 Raymond Spellman No. 1041, 2010 Z?m v 1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to complaint, etc.): Defendant's Motion to Change Venue. 2. Identify all counsel who will argue cases: a. for plaintiffs: ?b "rt p<7 Kelly Decker, ESQ., Rhoads & Sinon LLP,1 So. Market Sqr, Harrisburg, PA 17101 b. for defendants: Raymond Spellman, Defendant, 327 Morris Avenue, Boonton, NJ 07005 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Raymond J Spellman 3 Date: Aole) Defendant INSTRUCTIONS: 1.Original and two copies of all briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) before argument. 2. The moving party shall file and serve their brief 12 days prior to argument. 3. The responding party shall file their brief 5 days prior to argument. 4. If argument is continued new briefs must be filed with the COURT ADMINISTRATOR (not the Prothonotary) after the case is relisted. Robert J. Tribeck, Esquire Attorney I.D. No. 74486 Kevin M. Gold, Esquire Attorney I.D. No. 70265 Kelly H. Decker, Esquire Attorney I.D. No. 84886 Karen A. Salvemini, Esquire Attorney I.D. No. 307174 RHOADS & SINON LLP One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 Facsimile: (717) 238-8623 E-Mail: rtribeck@rhoads-sinon.com kgoldC?rhoads-sinon.com kdecker@rhoads-sinon.com ksalvemini@rhoads-sinon. com Attorneys for Express Dynamics, LLC d/b/n WorkXpress EXPRESS DYNAMICS, LLC d/b/a IN THE COURT OF COMMON PLEAS WORKXPRESS, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. NO. 10-1041 RAYMOND SPELLMAN Defendant. PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter the appearance of Karen A. Salvemini, Esquire as attorney for Plaintiff, Express Dynamics, LLC d/b/a WorkXpress, in the above-captioned matter. 904294,1 RHOADS & S1NON LLP By: Robe ,ribeck Kevin M. Gold Kelly H. Decker Karen A. Salvemini One South Market Square PO Box 1146 Harrisburg, PA 17108-1146 Telephone: (717) 233-5731 2 CERTIFICATE OF SERVICE I hereby certify that on this 14th day of January, 2011, a true and correct copy of the foregoing Praecipe for Entry of Appearance was served by means of hand delivery, upon the following: Raymond J. Spellman 327 Morris Avenue Boonton, NJ 07005 f iWAOCq-4 r4x;,Ll Karen alve?ni Robert J. Tribeck, Esquire Attorney I.D. No. 74486 Kevin M. Gold, Esquire Attorney I.D. No. 70265 Kelly H. Decker, Esquire Attorney I.D. No. 84886 Karen A. Salvemini, Esquire Attorney I.D. No. 307174 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Express Dynamics, LLC d/b/a WorkXpress EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff V. RAYMOND SPELLMAN r, ?a IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-1041 Defendant. PLAINTIFF'S MOTION TO COMPEL DEFENDANT RAYMOND SPELLMAN'S RESPONSES TO PLAINTIFF'S SECOND SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS PURSUANT TO PA.R.C.P. 4019 NOW COMES Plaintiff, Express Dynamics, LLC d/b/a WorkXpress, by and through its attorneys, Rhoads & Sinon LLP, and files the within Motion to Compel Defendant Raymond Spellman's Responses to Plaintiff's Second Set of Requests for Production of Documents pursuant to Rule 4019(a)(1) of the Pennsylvania Rules of Civil Procedure, stating as follows: Plaintiff, Express Dynamics, LLC d/b/a WorkXpress ("Plaintiff"), initiated the above-captioned action by filing a Complaint for Declaratory Judgment on February 9, 2010, requesting this Court to determine the permissibility of Plaintiff's termination of the oral agreement between the parties. Discovery is ongoing in this matter. 805030.1 16. The appropriate remedy for failure to comply with discovery requests is for this Honorable Court to grant Plaintiff's Motion to compel Defendant to serve responses to Plaintiff's Second Request for Production of Documents and all responsive documents (all objections having been waived). WHEREFORE, Plaintiff, Express Dynamics, LLC d/b/a WorkXpress, respectfully requests that this Honorable Court enter an Order directing Defendant, Raymond Spellman, to serve complete and substantive responses to Plaintiff's outstanding discovery with responsive documents within ten (10) days. Respectfully submitted, RHOADS & S1NON LLP Rob . Tribeck Attorney I.D. No. 74486 Kevin M. Gold Attorney I.D. No. 70265 Kelly H. Decker Attorney I.D. No. 84886 Karen A. Salvemini Attorney I.D. No. 307174 One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Express Dynamics, LLC d/b/a WorkXpress 4 805030.1 CERTIFICATE OF SERVICE I hereby certify that on this 21st day of January, 2011, a true and correct copy of the foregoing Plaintiff's Motion to Compel Defendant Raymond Spellman's Responses to Plaintiff's Second Set of Requests for Production of Documents Pursuant to Pa.R.C.P. 4019 was served by means of United States mail, first class, postage prepaid, upon the following: Raymond J. Spellman 327 Morris Avenue Boonton, New Jersey 07005 805030) 5v EXHIBIT A I Robert J. Tribeck, Esquire Attorney I.D. No. 74486 Kevin M. Gold, Esquire Attorney I.D. No. 70265 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Express Dynamics, LLC d/b/a WorkXpress EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff V. RAYMOND SPELLMAN Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-1041 NOTICE OF DEPOSITION TO: Eric J. Wiener, Esq. The Law Offices of Eric J. Wiener LLC 2515 North Front Street Harrisburg, PA 17110 PLEASE TAKE NOTICE that pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff will take the deposition of Defendant, Raymond Spellman, upon oral examination for the purpose of discovery or use at trial before a Notary Public or other person authorized to administer oaths, at The Law Offices of Eric J. Wiener LLC, 2515 North Front Street, Harrisburg, Pennsylvania 17110, on Wednesday, November 17, 2010, at 9:00 A.M., and continuing from day to day until concluded on all matters not privileged which are relevant and material to the issues and subject matter involved in the above- captioned action and that the above named person is requested and subpoenaed to appear at the aforesaid time and place and submit to examination under oath. Mr. Spellman is further directed to bring to the deposition, any and all documents and records in his possession, pertaining to or reasonably resulting from the subject matter of this litigation. RHOADS & SINON LLP By: 6?L U , Robert J. Trib Attorney I.D. N . 74486 Kevin M. Gold Attorney I.D. No. 70265 Kelly H. Decker Attorney I.D. No. 84886 One South Market Square P. 0. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Express Dynamics, LLC d/b/a WorkXpress Dated: ?? (0 CERTIFICATE OF SERVICE I hereby certify that on this 8th day of November, 2010, a true and correct copy of the foregoing Notice of Deposition was served by means of electronic mail and First Class Mail postage prepaid, upon the following: Eric J. Wiener, Esq. The Law Offices of Eric J. Wiener LLC 2515 North Front Street Harrisburg, PA 17110 ,J c? EXHIBIT B C?JF' .s 2 3 4 5 6 7 8 9 10 11 12 Ni 13 l 14 15 16 17 18 19 20 21 22 23 24 25 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, PLAINTIFF VS NO. 10-1041 RAYMOND SPELLMAN, DEFENDANT DEPOSITION OF: RAYMOND SPELLMAN TAKEN BY: PLAINTIFF BEFORE: TERESA K. BEAR, REPORTER NOTARY PUBLIC DATE: NOVEMBER 17, 2010, 9:05 A.M. PLACE: LAW OFFICES OF ERIC J. WIENER, LLC 2515 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 14 Q What do you possess at all that. relates to this -- MR. WIENER: Well, that's very broad and I'm going to object to the form of the question. You're asking him to here make a determination as to what is relevant and what isn't relevant and I don't think he's prepared to do that. BY MS. DECKER: Q Prior to your deposition today did you go back through your files concerning WorkXpress? A I did answer that. MR. WIENER: Well, you can answer it again. A Yes. BY MS. DECKER: Q And those files that suit? A I'm Q And notice of deposi were there any documents in any of you have not produced in this unsure. did you receive a copy of your tion? A Yes. Q And in your notice of deposition did you see that it requested all documents relating to GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 this suit? A Yes. Q And did you make an effort to look to see whether you had any documents that related to this suit other than what has been produced? A No. Q So you didn't comply with the notice of deposition? A It's a very broad statement that would be impossible to comply with. You know, the relationship goes back 10 years. Q Do you have -- A You asked for, from what I saw in the e-mail, those documents and that is what I brought. I didn't bring every piece of correspondence that had to do with anything that may have to do with Mr. LaPlante, WorkXpress, Express Dynamics or any of the other sundry type correspondence that may coordinate with that. I did not do that. Q Did you file any objection to the notice of deposition that was served? A No. Q I'm going to ask you and your counsel to have you follow up and look through your records and produce any other records that you have GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 relating to this lawsuit. MR. WIENER: him to do what? Say that again. You want MS. DECKER: Go back through his files and produce any other documents that he has relating to this suit as requested in the notice of deposition. MR. WIENER: Do you have the notice of deposition here? MS. DECKER: I do. A Can I take a break? Can we talk? MR. WIENER: Well, there's not a question on the table -- well, let me -- A I want to have a -- just a -- MR. WIENER: Let me look at this first. (Pause.) MR. WIENER: As to your last sentence, I am going to put on the record that the request is overly broad, burdensome and vexatious. You've asked for any and all documents and records in his possession pertaining to or reasonably resulting from the subject matter of this litigation. And I think you're asking him to produce documents and he has not made a -- made an assessment of what is resulting from the subject GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 matter. I mean, that's not precise. If you want to have him -- if you want to file a motion to produce documents, which you're certainly free to do that, but just to tack on a sentence like that just makes no sense. BY MS. DECKER: Q Mr. Spellman, did you file any objection or motion for protective order in response to the notice of deposition? A I don't know what a protective order is. Q Did you file anything with the court in response to the notice of deposition? A No. Q At the end of this deposition I'm going to leave it open with the idea that I may have to bring you back to this deposition -- A That's fine. Q -- to question you about any documents that are later produced. Also, when we get to it, there are requests for production that were not fully responded to. So in addition to the notice of deposition, you agree you were served with requests for documents from us? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 MR. WIENER: Can you tell me which ones you're talking about, requests for production that's not been complied with? MS. DECKER: Certainly. Off the record for a minute. (Discussion held off the record.) MS. DECKER: We just had a discussion off the record about the subject of written requests for production of documents served by WorkXpress and the interpretation of the Court's order dated October 7th, 2010. The parties disagree as to what was the subject of the order of the Court. I'm just going I to read the first paragraph that's the subject of our discussion. "And now, this 7th day of October, 2010, the cross-motions of the parties to compel answers to interrogatories in this case are denied without prejudice to either side to re-propound more appropriate interrogatories. See Brittain vs. Dow Chemical 36 CLJ 497. This order is intended to address itself to all written discovery outstanding as of the date of this order." The second paragraph of this order is not the subject of our discussion that we just had GEIGER & LORIA REPORTING SERVICE - 1-800-222-45'77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 off the record but discusses the taking of the deposition of Mr. Spellman. It's plaintiff's position that the request for production of documents were not the subject of the order. Defendant disagrees and suggests that all discovery as of that order was declared mute. And if I'm misstating, you can join in, Mr. Wiener. Plaintiff wants to leave Mr. Spellman's deposition open to the extent there are documents later produced in response to either the request for production or the notice of deposition. No protective order or objection was filed to the notice of deposition served. If there's anything else you want to add. MR. WIENER: Yes, I'd like this order to be attached as an exhibit, the order of Judge Hess. And also, it is not a question that it's mute, it's a question that the order is very clear that the order intends to address all written discovery outstanding so -- and clearly the 7/2/2010 from plaintiff's statement is outstanding today and was outstanding October 7th. Further, these outstanding requests GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 20 were put before the court by defendant. And we object to any further attempt to schedule another deposition based on the unanswered interrogatories and/or a motion to produce dated 7/2/2010. That's all. MS. DECKER: Just for clarification, there is no motion to produce documents and the request was made in a notice of deposition as well. MR. WIENER: And I put on -- I don't know if that was off the record or not. I'm going to say that the request in the notice of deposition is overly broad, burdensome, vexatious and does not give defendant enough information in the request as to what is or what is not "relevant." MS. DECKER: Having said all that, we'll move forward. BY MS. DECKER: Q Other than reviewing documents, did you speak to anybody today in preparation of your deposition, with the exception of counsel? A No. Q Can you tell me what documents you did review in preparation of your deposition? A I reviewed documents provided by plaintiff and documents which I have in my GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 possession. Q When you say documents in your possession, are they in a hard file, like a binder folder like that? A No. Q Are the documents on your computer? A Yes. Q And are your documents that are stored on your computer in a file folder, for instance? A No. Q So I know when I go in to search for somebody who sent me an e-mail I'm able to type their name and all their e-mails come up. Is that how your documents would be searched in your computer if you're looking for e-mails? A Well, some might be in the computer, some may have -- you know, may be in a folder. You. know, I have documents in numerous places. Q Other than the computer and folders, where else would your documents be located? A I believe that to be it. Q Have you maintained all of your records relating to WorkXpress since you started working with WorkXpress? A No. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 Q So would you have deleted e-mails? A Sure. Q And since this lawsuit was filed, did you delete any e-mails? A No. Q Did you have sort of a regular policy about deletion of e-mails, for instance, every 30 days? A No. Q Do you copy your computer e-mails or records onto a CD? A No. Q Did you request any documents from any people who are not related to this lawsuit? A No. Q Have you received any documents from anyone who is not a party to this lawsuit? A No. Q Let's go to your -- a little bit about your background, just so we can get through -- A Sure. Q -- and I'll try to speed this along. You graduated from high school? A Yes. Q And where did you graduate from high GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 EXHIBIT C Robert J. Tribeck, Esquire Attorney I.D. No. 74486 Kevin M. Gold, Esquire Attorney I.D. No. 70265 Kelly H. Decker, Esquire Attorney I.D. No. 84886 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Express Dynamics, LLC d1b/a WorkXpress EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff V. RAYMOND SPELLMAN Defendant. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-1041 PLAINTIFF'S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS TO DEFENDANT TO: Raymond Spellman 327 Morris Avenue Boonton, NJ 07005 PLEASE TAKE NOTICE that you are hereby required, pursuant to Pa. R.Civ.P. 4009, as amended, to produce for inspection, examination and copying, at the offices of Rhoads & Sinon LLP, One South Market Square, 12th Floor, P.O. Box 1146, Harrisburg, PA 17108-1146, not later than thirty (30) days after service of this request, the following documents. These Requests shall be continuing. If you or anyone acting on your behalf learns of additional documents responsive to this Request, you shall produce such document by Supplemental Response. DEFINITIONS AND INSTRUCTIONS (A) "You," "Defendant," and "your" refers to the person or persons to whom these Requests are propounded. 798908.1 (B) "WorkXpress" shall mean "Express Dynamics, LLC d/b/a WorkXpress." (C) "And" and "or" shall be construed conjunctively and disjunctively so as to bring within the scope of this Request for Production any information which might otherwise be construed to be outside its scope. (D) The word "document" means any correspondence, emails, memoranda, inter-office communication, intra-office communication, agreement, minute, report, note, schedule, book of account, ledger, invoice, receipt, purchase order, pleading, questionnaire, contract, bill, check, draft, diary, log, proposal, bid, recording, telex, telegram, drawing, picture, table, graph, chart, map or survey, including the originals and working, handwritten drafts of all of the above and any copies thereof which are different from the original by way of interlineation or notation, including any transcript or summary of the foregoing and any other tangible date compilations from which information may be used, including word processor systems. (E) If you claim that the subject matter of a document or oral communication is privileged you are required to identify the document or communication by stating the following information: (1) Its nature (e.g., letter, memorandum, tape recording, etc.); (2) Its date (or if it bears no date, the date when it was prepared); (3) The name, address, employer and job position of the signer or signers (or if there is no signer, of the person who prepared it); (4) The name, address, employer and job position of the person, if any, to whom the document was sent; (5) The name, address, employer and job position of each person known or believed to have originals of copies of the documents; or 2 798908.1 (6) A brief statement of the subject matter of the document; and state each ground or basis on which you contend that the document or oral communication is privileged. (F) If you do not have possession, custody or control of a document request, but know who does have possession, custody or control, you are required to identify the document and the person who has possession, custody or control in the manner requested in subparagraph (E) thereof. (G) If you respond by stating you will supplement in a timely manner, indicate when you will supplement your request and provide the documentation. YOU ARE REQUESTED TO PRODUCE THE FOLLOWING DOCUMENTS: 1. Any and all documents which refer, relate to, pertain to, or define your agreement with WorkXpress. 2. Any and all documents which refer, relate to, pertain to, or define the specific terms of your agreement with WorkXpress. 3. Any and all documents which support your claim that the agreement between Defendant and WorkXpress was formed or ratified in New Jersey. 4. Any and all documents which evidence, refer, relate or pertain to your claim that the agreement between the parties cannot be terminated. 5. Any and all documents which evidence, refer, relate or pertain to your claim that the terms of the agreement cannot be changed. 6. Any and all documents which evidence, refer, relate or pertain to your contention that in order for Plaintiff to terminate or change the parties' agreement, Defendant must have given Plaintiff the authority to do so. 7. Any and all documents in your possession that refute WorkXpress' position that the agreement was terminable at will. Any and all documents which refer, relate to, pertain to or define your relationship and contacts with Servolift, LLC. 9. Any and all documents that demonstrate the customer services provided by Defendant to Servolift from 2005 to the present. 10. Any and all documents authorizing Defendant to collect a flat rate of $600 from WorkXpress with regard to Servolift going forward concerning Servolift. 11. Any and all documents governing and/or prohibiting Plaintiff's communications with 3 798908.1 Servolift. 12. Any and all documents supporting your suggestion that Defendant could change the billing arrangement and bill Servolift directly. 13. All documents identified or relied upon in answering Plaintiff s First Set of Interrogatories. 14. Any and all exhibits you intend to use at the trial of this matter. 15. All documents which evidence, relate to, or pertain to any alleged damages you claim or may claim are owed by Plaintiff to you. 16. Any and all diaries, planners, PDA files, personal notes, text messages, emails, calendars or journals which you may have kept from November 2005 to the present. 17. All statements, summaries of statements, transcripts of recorded statements or interviews, or any memoranda or transcripts of statements or interviews of any party, person or witness, or their agents or employees, relating to, referring to or in any way describing the allegations and events regarding the issues of this case, who have any knowledge of the facts surrounding any of the matters, transactions or occurrences involved in this case. 18. Attached to each statement provided pursuant to the preceding request should be an explanation including: (a) the name, address and occupation of the person who gave the statement, and of the person who obtained the statement and the date and time it was obtained; and (b) the manner in which the statement was taken; i.e., electronic recording, written, oral, etc. 19. All documents which evidence, relate to, pertain to, support, or were created in an attempt to disprove the allegations in Plaintiffs Complaint, including, but not limited to, diaries, notebooks, journals, calendars, appointment books, notes, correspondence, memoranda, and tape recordings. 20. All documents prepared by you, or by a representative, agent, or anyone acting on your behalf, except your attorneys, during an investigation of the allegations and events regarding the issues of this case, or prepared in anticipation of litigation or trial of this matter. Such documents shall include any documents made or prepared up through the present time, with the exclusion of the mental impressions, conclusions, or the opinions respecting the value or merit of the claim or respecting strategy or tactics. 21. All statements of any person(s) who will be called as witness at trial of this matter. 22. All demonstrative evidence which will be introduced or used at trial. 4 798908.1 23. For each expert intended to be called as a witness at trial, all expert opinions, expert reports, expert summaries or other writings in your custody or control or in the custody or control of your attorneys, agents or representatives, which relate to the subject matter of this litigation and the proposed testimony of the preparer of such opinion, report, summary or other writing. 24. A current Curriculum Vitae for each expert retained by you or your attorneys in connection with this case who will testify at trial. 25. All documents, including but not limited to, advertisements, circulars, brochures, pamphlets, leaflets, writings, and other such promotional items any expert witness you have retained for use at trial uses and has used in the past to promote his services as an expert witness. 26. All documents, diaries, correspondence or other drawings, sketches, diagrams, or writings in your custody or in the custody or control of your attorneys, which relate to the subject matter of this litigation. 27. Any and all documents, potential exhibits, or other tangible thing, including, but not limited to, electronic or video recordings, films, photographs, diagrams and charts, believed by you or anyone acting on your behalf to have potential probative value regarding your claims/defenses in this matter. Provide the name and address of the person presently having possession, custody or control of each such item. 28. All documents requested of you during your deposition on December 17, 2010, including any and all documents that you indicated you were "unsure" if such documents existed. 29. All correspondence between you and Treff LaPlante that discusses or relates to Servolift. 30. All correspondence between you and Treff LaPlante that discusses or relates to any other customer that you attempted to market or sell WorkXpress software to since November 9, 2005. 31. All correspondence between you and Treff LaPlante that discusses the terms of the Agreement between you and WorkXpress concerning Servolift. 32. All correspondence between you and Treff LaPlante that discusses or relates to any terms for proposed Agreements for any customers other than Servolift. 5 798908.1 RHOADS & SINON LLP Dated: By: j/_-/?C? Robert J. Tri " k, Esquire Kevin M. Gold, Esquire Kelly H. Decker, Esquire One South Market Square P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 6 798908.1 CERTIFICATE OF SERVICE I hereby certify that on this 1 day of A`?, , 2010, a true and correct copy of the foregoing was served by means of United States mail, first class, postage prepaid, upon the following: Raymond Spellman 327 Morris Avenue Boonton, NJ 07005 798908.1 EXHIBIT D RHOADS & SINONuP Kelly H. Decker ph (717) 237-6735 fx (717) 238-8623 kdecker@rhoads-sinon.com FILE xo: 8439/3 January 6, 2011 Re: Express Dynamics, LLC d/b/a WorkXpress v. Raymond Spellman Cumberland County CCCP, No. 10-1041 Mr. Raymond Spellman 327 Morris Avenue Boonton, NJ 07005 Dear Mr. Spellman: Via First Class Mail On November 19, 2010, Plaintiff served a Second Set of Requests for Production on Defendant. Responses were due on or about December 19, 2010. To date, we have not received your responses and/or documents nor have you requested an extension to respond in the several unrelated letters that you have sent to me since that time. Kindly provide your responses, including responsive documents, within ten (10) days in order to obviate the need for a motion to compel. We intend to raise this issue with the Court on January 14, 2011. Thank you. Very truly yours, RHOADS & SINON LLP By: "y. er cc: Treff LaPlante (via email) 803583.1 One South Market Square, 12th Floor P.O. Box 1146 • Harrisburg, PA 17108-1146 • ph: 717.233.5731 EXPRESS DYNAMICS, LLC, IN THE COURT OF COMMON PLEAS OF d/b/a WORKEXPRESS, cl CUMBERLAND COUNTY, PENNSYLVA? ., Plaintiff ; rrI ? . CIVIL ACTION - LAW VS. NO. 10-1041 CIVIL -<> ' RAYMOND SPELLMAN, ? a M-n Defendant ; c I> IN RE: PLAINTIFF'S MOTION TO COMPEL RESPONSES AND DEFENDANT'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES ORDER AND NOW, this 3/ " day of January, 2011, argument on the plaintiff's motion to compel responses and the defendant's motion to compel answers to interrogatories is set for Friday, March 18, 2011, at 1:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Karen A. Salverntr,i, Kelly 9-44e Esquire For the Plaintiff led 'Raymond Spellman, Pro Se Defendant a/', Am EXPRESS DYNAMICS, LLC d/b/a IN THE COURT OF COMMON PLEAS OF WORKXPRESS, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF V. RAYMOND SPELLMAN, DEFENDANT 10-1041 CIVIL TERM IN RE: DEFENDANT'S MOTION FOR CHANGE OF VENUE- BEFORE OILER, JR., J. AND MASLAND, J. ORDER OF COURT AND NOW, this day of March, 2011, upon consideration of defendant's motion requesting change of venue, plaintiffs brief, and argument held on January 14, 2011, said motion IS DENIED because, inter alia, the motion was not timely raised by preliminary objection and therefore has been waived. Also argued on January 14, 2011, was defendant's motion to compel answers to his third set of interrogatories. On January 31, 2011, President Judge Kevin A. Hess issued an order setting argument on defendant's motion to compel answers to interrogatories and on plaintiff's motion to compel responses for March 18, 2011, in Courtroom Number 4. 'Therefore, we decline to address any discovery matters. By the Court, 'Kelly H. Decker, Esquire One South Market Square, 12th Floor Harrisburg, PA 17108-1146 Raymond J. Spellman, Pro se 327 Morris Avenue Boonton, NJ 07005 Albert H. Maslan :F, -J. 0 ly'. M?(ed P1 ;111/11 ??Q Dw :saa EXPRESS DYNAMICS, LLC, d/b/a WORKEXPRESS, Plaintiff vs. RAYMOND SPELLMAN, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-1041 CIVIL IN RE: CROSS MOTIONS TO COMPEL DISCOVERY ORDER AND NOW, this S' day of March, 2011, on request of the defendant, unopposed by the plaintiff, argument set for March 18, 2011, is continued. Same is rescheduled for Friday, May 27, 2011, at 3:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, ? Karen A. Salvemini, Esquire For the Plaintiff Raymond Spellman, Pro Se Defendant Gies tA'?j led 31 11 ba :rlm Kevin M. Gold, Esquire Attorney I.D. No. 70265 Karen A. Salvemini, Esquire Attorney I.D. No. 307174 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Express Dynamics, LLC d/b/a WorkXpress EXPRESS DYNAMICS, LLC d/b/a WORKXPRESS, Plaintiff V. RAYMOND SPELLMAN Defendant. 1OTHONOTA' ; 13 f SEP 14 Pit 3.40 'ts 'PEN SYLVAN A T', IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 10-1041 WITHDRAWAL OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw the appearance of the undersigned as counsel for Plaintiff, Express Dynamics, LLC d/b/a WorkXpress. Rhoads & Sinon LLP will continue to present Plaintiff Express Dynamics, LLC d/b/a WorkXpress. By: Kelly ec er squire One South Market Square P.O. Box 1146, One S. Market Sqr., 12`h Floor Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff Express Dynamics, LLC d/b/a WorkXpress 825376.1 CERTIFICATE OF SERVICE 14- I hereby certify that on this _ day of September, 2011, a true and correct copy of the foregoing was served by means of First Class Mail postage prepaid, upon the following: Raymond Spellman 50 Whitenack Road Basking Ridge, New Jersey 07920 " 4'" =0 Kelly H. Dec er 825376.1 Ey.passb namics, Li -c. d bla VloyILAp‘ess VS -Ick\IY\A"'d SPt\kwtan To the Court: Case No 0 011 STATEMENT OF INTENTION TO PROCEED -11:iki0- Est rynics,Lit Print Name Date: .SoNvto\y1; C) r intends to proceed with the above captioned matter. Sign Name Attomeyfor-naiiii-H-q s nArnics, LL IMPORTANT NOTE In the event that this is a second or subsequent filing of a Statement of Intention to Proceed, this matter will be referred to the President Judge for the purpose of conducting a status conference involving all counsel. The goal of the status conference will be to set the matter for trial or other final disposition within a time certain. Prior to the status conference, Counsel will be expected to submit to the court, in writing, a proposed schedule for the completion of discovery, the filing of dispositive motions and a report as to whether alternative dispute resolution has been used or discussed.